



PRi;sKNTi-;i) i;y 






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Gosta Rica -Panama Arbitration 



OPINION 

Concerning the Question of Boundaries 



BetweeB 



Tbe Republics of Costa Riga and Panama 



Examined with Respect to the Spanish Law and Given at the 

Request of the Government of Costa Rica by 

their Excellencies, 



DON SEGISMUNDO MORET T PRENDERGAST 

Ex-President of the Cabinet Council, Ex- President of the Congress of Deputies, 
Deputy to the Cortes, Ex-President of the Central University, 
Member of the Permanent Court of Arbitra- 
tion of the Hague, 

and 

DON VICENTE SASTAMARIA DE PA REDES 

Professor of Public Law in the Central University, Ex-Minister of Public Instruc- 
tion, Senator of the Kingdom, President of the Council of Public 
Instruction, Member of the Royal Academies of Moral 
and Political Sciences and of History 
President of the Technical Commission in the Arbitration Between the Republics V# 
of Honduras and Nicaragua, Decided by ' 

H. M. the King of Spain. 

PRINTEBS: 
• THB COMMONWEALTH COMPANY, 

ROaSLYN, VA., V. S. A. 
1913 



The docmnents to which parenthetical reference is 
made herein are to be found in *' Documents Annexed 
to the Argument of Costa Eica Before the Arbitrator, 
Hon. Edward Douglass White," etc., in four volumes. 



INTRODUCTION. 

I. The Arbitration of the Boundary Question Pend- 
ing Between the Republics of Costa Rica and Panama. 

On the 15th of March, 1825, the Eepublic of Colom- 
bia (whose rights are now claimed by that of Pana- 
ma) and the federated Eepublic of Central America 
(of which that of Costa Eica formed a part) entered 
into a treaty by which, in article 5, the parties mu- 
tually guaranteed the integrity of their respective ter- 
ritories *'as they existed prior to the present war of 
independence," and, in article 7, they obligated them- 
selves ' ' to respect the boundaries of each other as they 
now exist," reserving to themselves the duty to make 
amicably and by means of a special agreement, the 
demarcation of a divisionary line as soon as circum- 
stances might permit (Doc. No. 257). 

On the dissolution of that federation, the Eepublic 
of Costa Eica and that of Colombia undertook at vari- 
ous times to establish that divisionary line, preparing 
agreements which were never ratified and passing 
through serious conflicts in consequence of their dif- 
ferent conceptions as to the extent of their territorial 
sovereignty. 

With the laudable purpose of putting an end amica- 
bly to their differences, they entered into an agree- 
ment on December 25, 1880, submitting to arbitration 
"the question of limits existing between them and the 
designation of a line that shall separate for all time 
and with entire clearness the territory of the one from 
the other." By virtue of this agreement, the arbitra- 



tion was entrusted to His Majesty, the King of Spain, 
at that time Don Alfonso XII (Doc. No. 364). 

On the death of that Monarch, Costa Hica anc| 
Colombia, on January 20, 1886, entered into another 
convention, ''additional" to that of 1880, in Article 1 
of which the Government of Spain is declared to be 
"competent to proceed with the execution of the arbi- 
tration and to deliver a definitive sentence of an irre- 
vocable and unappealable character" (Doc. No. 369). 

In Article 2 of this additional convention the extent 
of the disputed territory was determined, and the 
claims of the parties litigant were set forth as follows : 

''The territorial limit which the Republic of 
Costa Rica claims, on the Atlantic side, reaches 
as far as the Island of the Escudo de Veragua 
and the River Chiriqui (Calcbebora) inclusive, 
and, on the Pacific side, as far as the River 
Chiriqui Viejo, inclusive, to the east of Punta 
Burica. 

' ' The territorial limit which the United States 
of Colombia claims reaches, on the Atlantic 
side, as far as Cape Gracias a Dios, inclusive, 
and, on the Pacific side, as far as the mouth of 
the Golfito River in the Gulf of Dulce." 

In Article 3, it is stated that the arbitral decision 
should be confined to the territory in dispute situated 
within these extreme limits, and should not affect in 
any way the rights of a third party who may not have 
intervened in the arbitration. 

New dissentions between Costa Rica and Colombia 
and their persistent desire for a friendly settlement, 
led to a third convention, signed November 4, 1896, by 
which the arbitration was offered in the first place to 
the President of the Republic of France, but it was given 



to be understood that the failure to designate the Gov- 
ernment of Spain as arbitrator was due solely to 
Colombia's reluctance to exact from that Government 
so much continuous service, she having only shortly 
before then subscribed with Ecuador and Peru a 
boundary treaty in which His Catholic Majesty was 
named as arbitrator, and this after his laborious trial 
of the question of the Colombian -Venezuelan frontier 
(Doc. No. 403). 

In this third convention the two prior ones of 1880 
and 1886 were ratified and held to be in force, except 
Articles 2 to 6 of the former, and 1 and 4 of the latter. 
So that there remained in force : Article 1 of the Con- 
vention of 1880, stating the question of limits, and 
Articles 2 and 3 relating to the boundaries claimed by 
each of the parties, and the condition that the arbi- 
trator be confined to the territory in dispute. 

The arbitral proceedings having been submitted to 
the President of the Republic of France, His Excel- 
lency Monsieur Loubet, who was then in charge of 
that very high ofl&ce, handed down his decision on 
September 11th, 1900 (Doc. Nos. 413 and 414), estab- 
lishing as a divisionary line that which he traced from 
Punta Mona on the Atlantic Ocean to Punta Burica 
on the Pacific Ocean. The award of Monsieur Loubet 
sets forth none of the reasoning on which it is based; 
only the bare decision is given, prefaced by a list of 
memoranda, documents and maps presented by each 
party, and an enumeration of the Eoyal acts cited 
by both. 

The Government of Costa Rica made respectful ob- 
servations to that of France, in regard to the difficul 
ties of carrying out the Award; and the Minister of 
Foreign Affairs, Monsieur Delcasse, in his note of 



8 

November 23, 1900 (Doc. Nos. 421 and 422), addressed 
to the Minister of Costa Rica in Paris, answered 
saying : 

"For lack of precise geographical data, the 
Arbitrator has not been able to fix the frontier 
except by means of general indications ; I deem, 
therefore, that it would be inconvenient to trace 
them upon a map. But there is no doubt, as 
you have observed, that in conformity with the 
terms of Articles 2 and 3 of the Convention of 
Paris of January 20, 1886, this frontier line 
must be traced within the limits of the territory 
in dispute, as they are found to be from the text 
of said Articles. It is according to these prin- 
ciples that the Republics of Colombia and Costa 
Rica will have to proceed in the material de 
termination of their frontiers ; and the Arbitra- 
tor relies, in this particular, upon the spirit of 
conciliation and good understanding which has 
up to this time inspired the two interested 
Governments. ' ' 

The Government of Costa Rica understood that the 
decision did not meet all the conditions stipulated in 
the arbitration agreement, since it did not establish 
the divisionary line for all time and with entire clear- 
ness; it even went outside the limits of the disputed 
territory, and left open the field of controversy. In 
its desire to settle the question of boundaries definit'-vely 
and as soon as possible, that government sought and 
in December, 1907, obtained (Doc. Nos. 440 and 442) 
the friendly mediation of the United States ; there was 
excellent reason for this choice inasmuch as the latter 
had been constituted by the Treaty of November 3, 
1903, guarantor of the independence of the new Repub- 
lic of Panama. 



The result of these negotiations was the Convention 
of March 17, 1910 (Doc. No. 473^, between the Repub- 
lics of Costa Rica and Panama, submitting the defini 
tive settlement of the matter to the Chief Justice of 
the United States, in the following form : 

''The Republic of Costa Rica and the Repub- 
lic of Panama, although they consider that the 
boundary between their respective territories 
designated by the arbitral sentence of His Ex- 
cellency, the President of the Republic of 
France, of the 11th of September, 1900, is clear 
and indisputable in the region of the Pacific, 
from Punta Burica to a point beyond Cerro 
Pando in the Central Cordillera near the ninth 
degree of North Latitude, have not been able 
to reach an agreement in respect to the inter 
pretation to be given to the Arbitral Award as 
to the rest of the boundary line; and for the 
purpose of settling their said disagreements 
agree to submit to the decision of the Honorable 
Chief Justice of the United States, who will 
determine in the capacity of Arbitrator : What 
is the boundary under and most in accordance 
with the correct interpretation and true inten- 
tion of the Award of the President of the Re- 
public of France made the 11th of September, 
1900." 

The convention immediately adds : 

*'In order to decide this, the Arbitrator will 
take into account all the facts, circumstances 
and consid^erations which may have a bearing 
upon the case, as well as the limitation of the 
Loubet Award, expressed in the letter of His 
Excellency, M. Delcasse, Minister of Foreign 
Affairs of France, to His Excellency, Senor 
Peralta, Minister of Costa Rica in Paris, of 



10 

November 23, 1900, that this boundary line must 
be drawn mthin the confines of the territory in 
dispute as determined by the Convention of 
Paris between the Republic of Costa Rica and 
the Republic of Colombia of January 20, 1886. ' ' 

II. Object and Plan of This Opinion. 

This matter being under submission before the Hon- 
orable Chief Justice of the United States, the Govern- 
ment of Costa Rica has been pleased to engage the 
undersigned counsel to examine all the antecedents 
of the case, the allegations of the Parties litigant, and 
the laws and Royal acts invoked, and to give an opin- 
ion in regard to the boundary question between the 
Republics of Costa Rica and Panama, as affected by 
the Spanish colonial law. 

In order to fulfill the duty with which it has hon- 
ored us, we have carefully examined all the data re- 
lating to the question, and after mature reflection, have 
prepared the present opinion. 

We will not go beyond the sphere of Spanish colonial 
law, as to which we are consulted, and we wish to state 
that we adopt this denomination, not because it lias 
been used in Spain — who called her territories of the 
Indies kingdoms and provinces, instead of colonies — 
but for greater clearness and in contradistinction to 
international law, into which we shall not intrude. 

What may be the efficacy of the decision of Monsieur 
Loubet under international law, and what the value of 
the intercolonial boundaries in fixing the international 
lines between two adjoining provinces dependent upon 
the same mother country and now converted into sov- 
ereign States, are questions foreign to our exami- 
nation. 



11 

But we do contend that to determine the question ot* 
the boundaries between Costa Rica and Panama ac- 
cording to Spanish colonial law is equivalent to de- 
ciding it under international law, because that law 
has been fundamentally the basis of the boundary set- 
tlements of the Spanish-American republics, because 
the entire discussion in the present litigation turns 
upon that law solely, and because the 'Hrue intent of 
the Award" of Monsieur Loubet was to sustain that 
system of laws. 

Although, as we have indicated, this Award con- 
tains no reasoning whatever, it clearly appears that 
the Arbitrator did not have any other intention, since 
it refers only to the laws. Royal cedulas and Royal 
orders of the colonial epoch which it cites in detail in 
the preamble, save the Treaty of 1825, between the 
Republics of Central America and Colombia, which 
recognized as boundaries those then existing, that is 
to say, the intercolonial boundaries. 

And since, according to the Convention of J.910, tiie 
Chief Justice must take into account all the facts, cir- 
cumstances and considerations of the case, and since 
the case involves the legality of the demarcations of 
Costa Rica and Panama according to Spanish colonial 
law, we will have to set forth all those facts, circum- 
stances and considerations arising during the period 
of the sovereignty of Spain inasmuch as they contrib- 
ute to clear up the matter. 

The question of boundaries being placed, therefore, 
in the field of Spanish colonial law, we divide this 
opinion into three parts, comprising the three proposi- 
tions following: 

1. The Province of Costa Rica and that of Veragua 



12 

were definitively established and marked out by the 
Crown in the Sixteenth century (1573). 

2. The Recopilacion de Indias (Compilation of the 
Laws of the Indies) respected and confirmed the ex- 
istence and demarcation of Costa Rica. 

3. Costa Rica continued in the same legal status of 
differentiation from Veragua, from the publication of 
the Recopilacion down to the independence. 

Under these three heads we shall group the differ- 
ent controverted questions, developing our opinion 
thereon as we proceed. 



13 



FIRST PART. 

The Province of Costa Rica and Veragua Were 
Definitively Established and Bounded by the Crown 
in the XVIth Century (1573). 

SUMMARY. 

I. Necessity for Studying the Formation of the Prov- 

inces of Veragna and Costa Rica. 

1. The "Veragua" Equivoque as the Premise of the 

Principal Argument of Columbia. 

2. The History of the Formation of the Provinces of 

Veragua and Costa Eica Clears Up the Equi- 
voque and Clearly Demonstrates How They 
Were Recognized and Differentiated in the 
XVIth Century. 

II. The Primitive Veragua (1502 to 1537). 

1. The Veragua of Christopher Columbus (1502). 

2. The Veragua of Nicuesa (1508). 

3. The Veragua Bordering on the Castilla del Oro of 

Pedrarias Davila (1513 to 1527). 

4. The Veragua of Felipe Gutierrez (1534). 

III. Province of Veragua. 

1. Creation of the Dukedom of Veragua; Royal Cedu- 
lasofl537. 



14 

I 

2. Limits of this Dukedom. 

3. Suppression of the Ducal Seignory (1556). 

4. Organization of the Province of Veragua with a 

Grovemor Captain-General. 

IV. Province of Costa Rica. 

1. Royal Veragua; Province of Costa Rica; Govern- 

ment of Sanchez de Badajoz (1539). 

2. Province of Cartago; Government of Diego Gu- 

tierrez (1540). 

3. Province of New Cartago or Costa Rica, From the 

Birth of the Province of Veragua (1560) : 

(a) Differentiation of the Two Veraguas, After the 
Suppression of the Ducal Seignory; 

(b) Ortiz de Elgueta (1559); 

(c) Juan de Cavallon (1560) ; 

(d) Denial of the Request of the Governor of 
Tierra Firme, Figuerola (1561); 

(e) Vazquez de Coronado (1562) ; 

(f) Perafan de Ribera (1566). 

4. The Province of Costa Rica Definitively Organ 

ized; Govermnent of Artieda (1573) ; 

(a) Royal Cedula of Philip II of December 1, 
1573; 

(b) Formation of the Province of Q^ei>uzgalpa 
by the Segregation of That of Costa Rica, 
Prior to 1573; 

(c) Boundaries With the Province of Veragua. 

V. The Question of Boundaries Settled by the Royal 
Cedula of 1573 and not by That of 1537. 

1. Importance, Confirmations and Subsistence of 

the Royal Cedula of 1573. 

2. Inefiicacy and Abrogation of the Royal Cedula 

of 1537. 



I. 

NECESSITY FOR STUDYING THE FORMATION 

OF THE PROVINCES OF VERAGUA AND 

COSTA RICA. 

1. The "Veragua'* Equivoque as the Premise of the 
Principal Argument of Colombia. 

The question of boundaries pending between the 
Republics of Costa Rica and of Panama (the successor 
to that of Colombia) refers to the territory which was 
called *'Veragua;" out of this was fonned the Prov- 
ince of Costa Rica, which is now the Republic of that 
name, and the Province of Veragua, which belonged 
to the Republic of Colombia and now belongs to 
Panama. 

Placing this question of boundaries within the 
sphere of Spanish colonial law, we find that it was set- 
tled in the XVIth century by the formation of these 
two provinces, and more specifically by the Royal 
cedula of December 1, 1573 (Doc. No. 62), which es- 
tablished forever the differentiation between them. 
And if it is always useful to know how any political 
entities which litigate their geographical boundaries 
were formed, it becomes indispensable in the present 
case, inasmuch as Colombia has enlarged her claims 
to the extent of denying the very existence of Costa 
Rica as a Spanish province, and has asked as her 
limits those mth which Costa Rica ends on the side 
opposite to the Colombian borders, in order clearly 
to get from the Arbitrator the greatest extension pos- 
sible, although it could not be expected that the arbi- 
tration would result in the suppression of the adverse 
international personality. 



16 

The ancient Veragua passed through various phases 
in its historico-legal evolution, until its name became 
concreted into one of the three provinces that arose 
out of it ; Colombia makes use of the ' ' equivoque ' ' to 
which the variety of the applications of the name gives 
rise, and founds thereon her argument. 

All of Colombia 's counsel employ, as their principal 
argument, the one which may be formulated in the 
following syllogism: Law 9, title 1, book V, of the 
Recopilacion de Indias (Doc. No. 135), with reference 
to the Royal cedula of Carlos V of March 2, 1537 (Doc. 
No. 13), says that ''the whole Province of Veragua 
belongs to the Government of Tierra Firme;" there- 
fore it is that since to Colombia belongs that which was 
under the Government of Tierra Firme, it follows that 
all of the Province of Veragua belongs to her. And as 
the Veragua of 1537 comprised all of the territory in- 
cluded between Castilla del Oro and Cape Gracias a 
Dios, and as within that territory was included that 
which Costa Rica now holds, the latter should have it, 
as also that which extends from the Desaguadero, or 
River San Juan (the boundary of Costa Rica with 
Nicaragua) as far as Cape Gracias a Dios. 

Don Francisco Silvela, who signed the first "Memo 
randum of Colombia," asserts that according to the 
Royal cedula of March 2, 1537, Veragua comprised 
from Castilla del Oro as far as Cape Gracias a Dios. 
but as the litigation was only with Costa Rica — which 
went no farther than the River San Juan — that river 
should be the northern limit on the Atlantic (p. 61). 

Monsieur Poincare says the same in the second and 
third "Memorandum of Colombia." declaring in the 
latter, in capital letters, "let the whole Province of 
Veragua belong to the Government of Tierra Firme" ; 



17 

this being the decisive phrase, which solemnly ex- 
presses, in his judgment, the thought of the Spanish 
Monarch (p. 2). In the ''Summary (resume) of the 
Conclusions of Colombia," also presented to the Ar- 
bitrator by Monsieur Poincare, he condenses the argu- 
ment as follows: 

"The whole of the Province of Veragua de 
pended from the Audiencia of Panama and this 
Audienca was swallowed up in the Viceroyalty 
of Santa Fe. Colombia is unquestionably the suc- 
cessor to the right of the Government of Tierra 
Firme, of the Audienca of Panama and the Vice- 
royalty of Santa Fe. All of the Province of Vera 
gua ougbt, therefore, to belong to Colombia. Sincp 
its origin the Province of Veragua has extended 
as far as Cape Gracias a Bios. (See the Eoyal ce- 
dula of March 2, 1537). It has never been di- 
vided. ' * 

2. The History of the Formation of the Province of 
Verague and Costa Rica Clears Up the Equivoque and 
Clearly Demonstrates How They Were Recognized and 
Differentiated in the XVIth Century. 

History clears up the equivoque upon which Colom- 
bia bases her argument, for it shows the different sig- 
aifications which the denomination of "Veragua" had 
until it came to be applied solely to one determinate 
province. 

This investigation of the formation of the Province 
of Veragua and Costa Kica has, besides its historical 
interest, the immense importance of clearly demon- 
strating how the question, which is now being tried be- 
tween Costa Rica and Panama, was settled in the 
XVIth century by the Spanish colonial law — ^not by 
virtue of the Royal cedula of 1537, but of the Royal 



18 

cedulas of December 1, 1573, (Doc. No. 62) and Feb- 
ruary 18, 1574 (Doc. No. 63). 

We think that Colombia's counsel, by taking as a 
point of departure the Recopilacion de Indias, have 
obscured the controversy; they have mixed legal con- 
siderations deduced from its texts with historical as- 
sertions difficult of comprehension in connection with 
those texts, without previously taking up the history 
of the formation of those provinces, as was done by 
counsel for Costa Rica in his first Memorandum. It 
seems to us better to explain and discuss first the acts 
and legal dispositions that preceded the Recopilacion, 
and then, afterwards, to examine the Recopilacion^ 
and, taking its laws altogether, apply them to the facts 
and prior dispositions which are already known, with- 
out having to interrupt the doctrinal demonstration 
with historical digressions appropriate to the preced- 
ing epoch. 

For greater clearness, also, we divide the historico- 
legal examination of the epoch prior to the Recopila- 
cion into three sections, which cover respectively: (1) 
that which we call primitive Veragua, that is, from 
the discovery by Columbus, in 1502, down to its divi- 
sion into Ducal Veragua and Royal Veragua, in 1537 j 
(2) the Province of Veragua, and (3) the Province of 
Costa Rica. Within each section we follow the chro- 
nological method, which, thus combined with the geo- 
graphical division, obviates the confusion that results 
when, by observing the former exclusively and keep- 
ing the order of the dates, different facts relating to 
distinct provinces, are mingled. From all this ex- 
amination we shall deduce, at last, that the question 
of boundaries was settled by th« Royal cedula of 1573, 
and not by that of 1537. 






reRRiToniEs of centr/^l ^jmer/c/j 



ay COLI/MBV3 



MIS FC^'^TM YOr/JGC ^ /SO z) 




n. 

THE PRIMITIVE VERAGUA (1502 TO 1537). 

1, The Veragua of Christopher Columbus (1502). 

For many years the territories of Central America 
lying along the coast of the Atlantic, from Cape Hon- 
duras as far as the port of Retrete (nov/ the port of 
Escribanos) near Cape San Bias, and which Christo- 
pher Columbus discovered in his fourth and last voy- 
age of 1502, were known by the name of "Veragua." 

Strictly speaking this name belonged only to a ham- 
let and a small surrounding territory. Columbus re- 
lates, in Ms letter from Jamaica, of July 7, 1503, to 
the Catholic Sovereigns (Doc. No. 1), in which he 
gives an account of this voyage, that two Indians took 
him to Carambarii (Zorobaro), where the people went 
naked, with but a mirror of gold at the neck, telling 
him of many places on the coast in which gold was to 
be foimd; ^'the farthest," he said, ''was VeragvM, 
distant from there about 25 leagues." And in de 
scribing in detail the same voyage, Diego de Porras 
explains how Columbus, entering by the river he called 
Belen, '-'in the territory of Veragua," proved the ex- 
istence of the mines. So Columbus understood that 
Veragua was situated 25 leagues to the east of Zoro- 
baro and extended to the River Belen. 

The great fame acquired by this territory of Ve- 
ragua — ^in which Columbus stated that in the first two 
days he had seen greater signs of gold than in Es- 
paiiola (the Island of Hispaniola, or Hayti) during 
four years — caused its discovery to be considered as 
the most important of that fourth voyage, and the 



20 

name *'Veragiia" was applied to all that was discov- 
ered there, from Cape Honduras as far as the Cape of 
San Bias. 

2. The Veragua of Nicuesa (1508). 

When Columbus returned to Spain he claimed from 
the Catholic Sovereigns the fulfillment of the promises 
made to him, especially as to the seignory of the terri- 
tory of Veragua, which was the one that he held in the 
greatest esteem. But he did not have the support of 
Queen Isabella, who had died, and the Catholic King 
did not admit his claims, considering them excessive 
and dangerous to the Royal sovereignty. The Admiral 
having died without succeeding in his desires, Don 
Diego Columbus, his son and heir, instituted a suit, 
in 1508, against the Crown, which was in great part 
settled by the creation of the Dukedom of Veragua, 
in 1536. 

By the Royal cedula of Dona Juana, of June 9, 1508 
(Doc. No. 2), the Government of Veragua was granted 
to Diego de Nicuesa ; therein he was given besides the 
military command, "full power and jurisdiction, civil 
and criminal," although restricted by the right of 
appeal to the Governor of the Island of Espanola. In 
this Royal cedula the extremity of Veragua was clearly 
fixed on the side of Tierra Firme, in the Gulf of Uraba, 
and it was provided further that the part of Uraba is 
that granted to Alonso de Ojeda; but there is no indi- 
cation where the Government of Veragua which was 
granted to Nicuesa, terminated on the west and nortli. 

Fray Bartolome de las Casas and other historian.^ 
of the Indies (like Herrera and Navarrete) say that 
the Veragua of Nicuesa extended from the Gulf of 



21 

Uraba as far as Cape Gracias a Dios. Fernandez de 
Oviedo asserts that it was from the same Gulf of Uraba 
**as far as the end of the territory called Veragua.'' 
Senor Peralta observes very properly, that the only 
data which the Catholic King had before him on which 
to base the grant of the Government of Veragua, were 
the courses and indications of Columbus, and if thes<3 
be ignored, there is just as much reason to conjecture 
that it extended to Cape Gracias a Dios as that it 
extended to Cape Honduras, or any other point in the 
voyage of the Great Discoverer. This strengthens 
the extension that was given to the name of Veragua. 

Nicuesa did not succeed in founding anything in the 
territory which was allotted to him ; he stayed only in 
the Veragua of the Belen river and in the Island of 
the Escudo of Veragua (or Nicuesa), and there en- 
dured many misfortunes, disappearing, in 1511, in a 
shipwreck. 

Vasco Nunez de Balboa, who had founded the colony 
of Santa Maria del Darien, within the jurisdiction of 
Nicuesa on the western coast of the Gulf of Uraba, in 
a letter of January 20, 1513 (Doc. No. 3), giving an 
account to the King of the progress of that colony, 
asked that he might be allowed to bring back some 
Indians "of the part of Veragua from a gulf called 
San Bias, which lies at a distance of 50 leagues from 
this town down the coast." So that according to 
Nunez de Balboa, Veragua did not terminate on its 
eastern side at the Belen river, but included also the 
territories of the Gulf of San Bias. 

Vasco Nunez de Balboa discovered the South Sea 
(Pacific) on September 25, 1513. 



22 

3. The Veragua Bordering on the Castilla del Oro of 
Pedrarias Davila (1513 to 1527). 

By the Royal cedula of July 27, 1513 (Doc. No. 4), 
Pedrarias Davila was appointed Captain-General and 
Governor of the Province of Castilla del Oro (the first 
time that this denomination was applied to Tierra 
Firme) "so long as it does not include nor have em- 
braced within it the Province of Veragua, the admin- 
istration of which belongs to the Admiral Don Diego 
Columbus, because the Admiral, his father, discovered 
it in person." The Province of Castilla del Oro was, 
therefore, differentiated from the ** Province of Ve- 
ragua," which was thus denominated before the crea- 
tion of the dukedom of the same name ; but the bounda- 
ries between the two were not fixed. 

Gonzalo Fernandez de Oviedo, the official historian 
of the Indies, who intervened in the conquest of Tierra 
Firme and Nicaragua, says that "Castilla del Oro on 
the North Coast reaches as far as Veragua, with which 
the Punta de Chame corresponds more or less on the 
South Coast, fifteen leagues to the West from 
Panama. ' ' 

This limit agrees with that of the jurisdiction of the 
city of Panama, fixed by the Royal cedula of 1521 
(Doc. No. 5), wherein it is stated that it reaches "as 
far as the Province of Chirii," which is situated a 
short distance from the Punta de Chame. 

According to this, the Province of Veragua, border- 
ing on Castilla del Oro, did not terminate on the east 
at the Belen river, but extended as far as the said 
Punta de Chame. 

Pedrarias Davila governed Castilla del Oro until 
1527, when he left to become Governor of Nicaragua. 



23 
4. The Veragua of Felipe Gutierrez (1534). 

Whilst the suit instituted by Don Diego Columbus 
was still pending, but with the declaration made in hi:* 
favor by the Crown respecting Veragua (excluding it 
from the Government of Castilla del Oro), the widow, 
Dona Maria de Toledo, as guardian of his children and 
Vicereine of the Indies, determined to grant the Gov- 
ernment of Veragua to Felipe Gutierrez, and applied 
to the Council of the Indies for the issuance to him of 
the requisite Royal provisiones. But in accord with 
the Council, the King Don Carlos preferred to ^rant 
the concession directly to Felipe Guterrez ; this he did 
by the capitulacion approved by the Royal cedula of 
December 24, 1534 (Doc. No. 8), and at the same time, 
by another Royal cedula, of the same date (Doc. No. 
6), he declared that this **is understood to be without 
prejudice to any right that the said Admiral Don Luis 
Columbus claims to have to the said government by 
virtue of his privileges." In the Royal cedula of 
February 6, 1535 (Doc. No. 9), the title of Governor 
of Veragua was conferred upon Felipe Gutierrez with 
all that pertained thereto. 

Both in the Royal cedula of capitulacion, as well as 
in the title the text reads : 



"The Province of Veragua, which is on the 
coast of Tierra Firme of our Indies of the Ocean 
Sea, whence terminate the boundaries of the 
Government of Castilla del Oro, called Tierra 
Firme, and which were designated to Pedrarias 
Davila and Pedro de los Rios, who were our Gov- 
ernors of the said province under the Provis- 
iones which were given to them, as far as the 
Cape Gracias a Dios." 



24 

Felipe Gutierrez as Governor of Veragua, having 
presented a complaint against the Governor of Tierra 
Firme, because the latter had invaded his territory, 
the Eoyal cedula of July 14, 1536 (Doc. No. 10), was 
issued, directing the latter not to enter within the lim- 
its of the Province of Urraca, as it fell within that of 
Veragua. The territories of Urraca were contiguous 
to Nata and occupied the heights which divided the 
waters of the north and the south; so that by this 
Royal cedula the eastern boundaries of the Province 
of Veragua were concretely defined. 

Almost at the same time Felipe Gutierrez abandoned 
his charge and set out for Peru, having failed in his 
undertaking and being unable to support so many 
misfortunes. 

ni. 

PROVINCE OF VERAGUA. 

1. Creation of the Dukedom of Veragua; Royal Ce- 
dillas of 1537. 

The long suit based upon the claims of Christopher 
Columbus, which his son Don Diego began in 1508 
and which was continued by the widow of the latter, 
Dona Maria de Toledo — for herself and in the name of 
her first born, Don Luis, and other children — was de- 
cided by the arbitral decision of July 7, 1536^; this 
decision was delivered by the Cardinal Fray Garcia de 
Loaysa, Bishop of Sigiienza, Confessor of the Em- 
peror and President of the Council of the Indies, who 
was appointed arbitrator by mutual agreement be- 
tween the Vicereine and the Crown. 

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25 

Carlos V, in his Eoyal cedula of January 19, 1537 
(Doc. No. 12), states how both parties entrusted the 
settlement to the Cardinal in order that he might 
"determine and arbitrate therein as he shall deem 
best, taking from one party and giving to the other, 
accordingly as may appear to him proper;" he con- 
firms the Cardinal's decision and, in pursuance thereof 
creates the Dukedom of Veragua in favor of Don Luis 
Columbus and his successors, making a grant to him 
and to his house and estate of 'Hwenty-five leagues of 
land in a square in the Province of Veragua which is 
in Tierra Pirme, with its civil and criminal jurisdic- 
tion, high and low, simple, mixed imperial, leaving 
the supreme to His Majesty." 

The creation of the Dukedom of Veragua which 
segregated a square of twenty-five leagues on each 
side of the territory known under the name of Veragua 
and the government of which had been granted to 
Felipe Gutierrez, compelled provision to be made in 
regard to the legal and the governmental situation in 
which that territory was left, especially since, at the 
end of 1536, the desertion of that governor had become 
known in Spain. This led to the Royal cedula of 
March 2, 1537 (Doc. No. 13), in which the Emperor 
revoked the capitulacion and government of Felipe 
Gutierrez, reproduced the disposition concerning the 
creation of the dukedom and directed that the territo- 
ries left in the said Province of Veragua, after taking 
out the twenty-five leagues given to Don Luis Colum- 
bus, be understood to belong to the Government of the 
Province of Tierra Firme, called Castilla del Oro, 
''during our will and pleasure." 

By virtue of this Royal cedula, upon which counsel 
for Colombia mainly rely in defense of her rights, the 



26 

territory of the ancient Veragua granted to Felipe 
Gutierrez was divided into two parts, which, in order 
to distinguish them, are designated in the present con- 
troversy Ducal Veragua and Royal Veragua, refer- 
ring respectively to that which constituted the Duke- 
dom of Veragua and to that which was reserved by the 
Crown for its free disposal. 

2. Limits of This Dukedom. 

In this Royal cedula of March 2, 1537, as well as in 
the earlier one of January 19th, the boundaries of the 
Dukedom of Veragua were fixed in the following 
manner : 



<< * * * ^ square of land twenty-five 
leagues, in the said Province of Veragua * * * 
and they begin from the River Belen, inclusive, 
counting by a parallel, as far as the western 
part of the Bay of Zorobaro; and all the leagues 
that may be lacking for the said twenty-five 
leagues, shall be counted forward from the said 
bay by the said parallel; and where these 
twenty-five leagues terminate, another twenty- 
five shall begin by a North-South meridian ; and 
as many others begin from the said River Belen 
by the said meridian of the said river, North- 
South ; and where these said twenty-five leagues 
shall end, there shall begin another twenty-five 
leagues, which shall continue, counting by a 
parallel, until they end where the twenty-five 
leagues terminate that are counted proceeding 
forward from the Bay of Zorobaro; which ter- 
ritory we have commanded to be called the Bay 
of Zorobaro, and with it we direct to be given 
him the title of Duke * * *" 



27 

As may be seen, the demonstration is mathematical ; 
the grant forms a perfect quadrangle, which has one 
side definitely determined by the meridian correspond- 
ing to the Belen river, included therein. It should be 
noted that Zorobaro and the Belen river were for 
Christopher Columbus the indicatory points of the 
Veragua discovered and coveted by him under this 
name ; and it appears that between the meridian of the 
Belen river and the Province of Castilla del Oro, which 
the prior demarcations refer to as bordering on the 
Province of Veragua, there were lands which were not 
included in the Dukedom of Veragua. 

These facts must be taken into consideration when 
the time comes to interpret the Recopilacion de Indias 
in its relation to the Royal cedula of March 2, 1537; 
and without concerning ourselves now with the terri- 
tory of the Royal Veragua left on either side of tha 
twenty-five leagues of the dukedom, let us see how the 
latter was converted into the Province of Veragua 
properly so-called. 

3. Suppression of the Ducal Seignory (1556). 

Don Luis Columbus was not fortunate in the con- 
quest and government of the dukedom which was ex- 
ercised and carried on by governors and captains ap- 
pointed by him, and after the disaster in which his 
brother Francisco perished and the failure of Rebol- 
ledo, he made a cession to the Crown of the territories 
and seignory of the Dukedom of Veragua, in consid- 
eration of an annual pension of seven thousand ducats , 
but the title he retained, as he stipulated with the 
Council of the Indies in writing on July 4, 1556, which 
stipulation the King approved and directed to be car 



28 

ried out by the Eoyal cedula of December 2 of tlie 
same year (Doc. No. 31). 

The territory of the suppressed dukedom was left 
added to the Government of the Province of Tierra 
Firme, called Castilla del Oro, it not being true that 
it was placed under the jurisdiction of the city of Natd, 
as coimsel for Colombia assert. The fact is that, by 
the Royal cedula of January 21, 1557 (Doc. No. 32), 
the Governor of Tierra Firme was authorized to per- 
mit the inhabitants of Nata to settle the territory of 
the dukedom as they had asked permission to do. 

The inhabitants of Nata organized an expedit'.oij 
under the command of Francisco Vazquez, who was 
commissioned by the Governor of Tierra Firme, and 
who, in May, 1558, entered the territory of Urraca, 
founded some settlements and discovered some mines- 

The Governor of Tierra Firme, Monjaraz, learning 
of this, wanted to make the conquest himself, and set 
our for Nata; but Vazquez hastened to make a cjm 
plaint to the Audiencia of Peru (Doc. No. 33) and 
with his men resisted the entry of Monjarez, defeating 
him on the banks of the Gatu river, the boundary of 
the Dukedom of Veragua on the side of Nata. 

4. Organization of the Province of Veragua With a 
Governor Captain-General (1560). 

In view of the complaint instituted by Francisco 
Vazquez, the Audiencia of Peru, by Royal provision 
of May 20, 1559 (Doc. No. 33), appointed Bernardino 
de Roman to take up the matter and arrange its settle- 
ment. Bernardino de Roman was informed of all that 



29 

had happened and then made a long report to the King, 
giving an opinion very favorable to Vazquez.^ 

Philip II put an end to the question by the Royal 
cedula of August 20, 1560 (Doc. No. 40), instituting 
the Province of Veragua with a Governor Captain- 
General and appointing for this post Francisco Vaz- 
quez, to whom he granted all the attributes necessary 
for the good government and administration of jus- 
tice in that province. 

The boundaries of the new Government were not 
fixed; but there can be no doubt that it had for its 
territory that of the suppressed dukedom, according 
to the antecedents of this Royal cedula and to the lan- 
guage used therein respecting the origin of the ques- 
tion decided. Francisco Vazquez, in his petition to 
the Audiencia of Peru, appears, represented by at- 
torney, as a resident of the city of Nata by virtue of 
the rights established by the Royal cedula of January, 
1557, which, he says, ''commands the Governor of the 
Province of Tierra Firme to appoint a person who 
should settle and conquer the Province of Veragua, 
that was the Dukedom of the Admiral Don Luis Co- 
lumbus, but which His Majesty had placed again under 
the Royal Crown * * *." The Royal cedula of 
1560, appointing him Governor, began by stating that 
he made an agreement and capitulacion with the Gov- 
ernor or Tierra Firme in order to settle the Province 
of Veragua, as the latter had been authorized. 

Francisco Vazquez, then, was the first of the gov- 
ernors who ruled the Province of Veragua, which con- 
tinued under that kind of authority during the whole 
of the Colonial epoch. 

* Leon Fernandez, Coleccidn de Documentos para la Historia de 
Costa Rica, Vol. V, p. 153. 



IV. 

PROVINCE OF COSTA RICA. 

L Royal Veragua; Province of Costa Rica; Govern- 
ment of Sanchez de Badajoz (1539). 

As we have said, by Royal cedula of March 2, 1537, 
the Veragua the governinent of which was granted to 
Felipe Gutierrez, was left split up into two parts : the 
dukedom, that is to say, the square of twenty-five 
leagues given to Don Luis Columbus ; and the rest of 
that territory, herein called for greater clearness 
Royal Veragua, in contradistinction to Ducal Veragua. 

The said Royal cedula, from which Colombia dejives 
all her rights, simply says in respect of Royal Ver- 
agua, that it was left in the Government of Tierra 
Firme (Castilla del Oro) during the Monarch's pleas- 
ure; and the Monarch repeatedly disposed of it, to that 
extent, at least, therefore, repealing the Royal cedula 
referred to. 

In the first place the jurisdiction over Royal Ver- 
agua passed from the Government of Tierra Firme 
to the Audiencia of Panama, which replaced the for- 
mer in 1538. 

Because of the fact that Royal Veragua depended 
upon the Government of this Audiencia, its Judge, Dr. 
Robles, thought that he was authorized to make a capit- 
ulacion giving it to his son-in-law, Hernan Sanchez de 
Badajoz, who already, through the Vicereine, had the 
Government of the dukedom under his charge, and 
because ** the one did not go without the other." It 
was so stated by him in his letter to the Council of 
the Indies of the 19th of July, 1539 (Doc. No. 15). 



31 

But Rodrigo de Contreras, Governor of Nicaragua, 
had commissioned two captains to undertake the ex- 
ploration of the Desaguadero, or River San Juan, and, 
as the latter disembogued on the Veragua coast which 
had been granted to Sanchez de Badajoz, the Au- 
diencia of Panama informed that governor of the 
undertaking by Royal provisiones of December 17, 
1539 (Doc. No. 16) ; in this he was told that the grant 
to Sanchez de Badajoz comprised the right of conquest 
and Captaincy-General of the Province of Costa Rica, 
"which extends from the borders of the Dukedom of 
Veragua and Zoroharo as far as Guaymura (Cape 
Camaron) and from Sea to Sea." This is the first 
time that the name of Costa Rica appears officially, 
and as equivalent to the wider acceptation of Veragua, 
that is to say, to the coast discovered by Columbus 
during his last voyage (as far as the dukedom) with 
the addition of the extension ' ' from Sea to Sea. ' ' 

The King, in accord mth the Council of the Indies, 
by Royal cedulas communicated to Sanchez de Bad 
ajoz, and to the Audiencia, on April 24th, 1540 (Doc. 
No. 17), declared void the concessions which the latter 
made of *'the lands which are left to us in the Province 
of Veragua * * * because this is a matter that 
must be treated solely by our Royal Person and in our 
Council of the Indies." 

2. Province of Cartago; Government of Diego Gutier- 
rez (1540). 

At the solicitation of Diego Gutierrez, brother of 
Felipe, and in accord with the views of the Council 
of the Indies, the Crown authorized him to undertake 
the conquest and settlement of Royal Veragua, and 



32 

issued the Eoyal cedula of November 29, 1540 (Doc. 
No. 18), which approved the capitulacion. and con- 
ferred upon him by Royal cedula of December 16 of 
the same year (Doc. No. 19), the title of Governor of 
that province, which was then designated by the name 
of Cartago. 

As appears from these documents, the government 
granted to Diego Gutierrez under this denomination 
of Cartago, is the same as that which the Audiencia 
of Panama improperly granted, under the name of 
Costa Rica, to Sanchez de Badajoz, but with greater 
precision as to boundaries. 

The line of the dukedom is fixed as a basis by the 
meridian corresponding to the termination of the 
twenty-five leagues which were to end towards the 
Bay of Zoroharo; the province stretches in length 
along the coast as far as the Eiver Grande, to the west 
of Cape Camaron; its width is fixed as from ''sea to 
sea" up to Nicaragua and then limited by this province 
to fifteen leagues from its Lake Nicaragua and by that 
of Honduras as far as the River Grainde. 

This demarcation established by the Royal cedulas 
of 1540, was confirmed by that of January 11, 1541 
(Doc. No. 20), in which all the governors of the prov- 
inces were commanded to respect the boundaries of 
the Province of Cartago ; by the sentence of the Coun- 
cil of the Indies, of April 9, 1541 (Doc. No. 232), in 
the suit instituted iu regard to the Desaguadero, and 
by the Royal cedula of May 9, 1545 (Doc. No. 29), 
adding the Province of Cartago to the Bishopric of 
Nicaragua. All of these go to show that the vague 
reference to the Royal Veragua, made in the Royal 
cedula of 1537, had no importance and even no legal 



33 

force after the recognition and delimitation of the 
Province of Cartago. 

Diego Gutierrez died in a fight with the Indians, and 
the Crown, in conformity with the designation made 
by his son in favor of Juan Perez de Cabrera, con- 
ferred upon the latter the title of Governor of Cartago, 
on February 22, 1549 (Doc. No. 30). The Council of 
the Indies having agreed that the conquest of this 
province be postponed, Cabrera was transferred to 
the Government of Honduras (1552). 

3. Province of Cartago, or New Cartago or Costa 
Rica, From the Birth of the Province of Ve- 
ragua (1560). 

(a) Differcntiafion of the Two Veraguas, After the 
Suppression of the Ducal Seigiwry, 

It may be thought that hy the retrocession of the 
Dukedom of Veragua to the Crown, in 1556, the dif- 
ference between the Dukedom of Veragua and the 
Royal Veragua disajjpeared, and that they returned 
to form the Province of Veragua as it existed before 
the creation of that dukedom by Royal cedula of March 
2, 1537. But such was not the case, for each con- 
tinued with an independent life, with governments of 
distinct origin and constituted as distinct provinces 
under different names. 

We have already seen how the conquest and settle- 
ment of the suppressed dukedom was made, from. 
Tierra Firme, by Francisco Vazquez, under whose 
command, as Governor and Captain-General, the 
Province of Veragua was organized in 1560 — since then 
the only province of that name. 



34 

In order that the ambiguity of the denomination oi 
Veragua might disappear and not be confused with 
that of the dukedom, the Audiencia of Panama called 
the Eoyal Veragua which was improperly granted to 
Sanchez de Badajoz, Costa Rica, and Charles V called 
that same Veragua which he granted to Diego Gutier- 
rez, Cariago, perhaps also by not admitting even the 
name of that grant which he had revoked. 

The historian, Fernandez de Oviedo, says that Diego 
Gutierrez ordered that his Government be called Car 
tago and Costa Rica, under penalty of a hundred lashes 
to whoever should dare to call it Veragua. In the 
period that intervened between his government and 
the year 1573, it was designated indiscriminately by 
the names of Cartage, New Cartago and Costa Rica, 
and with each change the latter name came more fre- 
quently to be used. Costa Rica is, then, the province 

that was definitively constituted in 1573 by the separa- 
tion of the portion north of the Desaguadero, which 
was to be called the Province of Teguzgalpa to dif- 
ferentiate it from that of Veragua ; for the latter was 
reserved the name of Veragua, which has led to so 
much confusion. 

Whilst the formative current of the Province of 
Veragua came from the side of Tierra Firme, that o? 
the Province of Costa Rica proceeded from Nicaragu'i 
and Guatemala, that is to say, from the opposite side. 

(b) Ortiz de Elgueth (1559). 

The King, Don Philip II, by an unquestionable act 
of sovereignty and without the intervention of any 
capitulacion whatever, entrusted the settlement and 



35^ 

government of Royal Veragua to the Licentiate Alonso 
Ortiz de Elgueta, as Alcalde mayor of the Province 
of Nicaragua, by Royal cedula, dated at Toledo De- 
cember 13, 1559 (Doc. No. 34), which begins thus : 

''We are informed that between that Province 
of Nicaragua and that of Honduras and the 
Desaguadero of Nicaragua, on the side of {a la 
parte de) the cities of Nombre de Dios and 
Panama, between the South Sea and that of the 
North, there are many Indians without light or 
knowledge of the faith, but who have shown 
great evidences of yielding obedience and re- 
ceiving the Christian doctrine; and since we 
much desire that this country may be settled 
and properly governed, as well as the natives 
thereof enlightened and taught in our Holy 
Catholic Faith, and also that the Spaniards who 
go that way be benefited and established and 
may have a fixed location and livelihood * * * 
We directed it to be discussed in our Council 
of the Indies * * * and so we command you 
that you undertake the same * * * and in the 
said settlement and exploration you will ob- 
serve, and will cause to be observed, the direc- 
tions in this instruction contained, which are as 
follows:" (Then follow the directions.) 

By Royal cedula of February 23, 1560 (Doc. No. 37), 
this resolution was communicated to the Audiencia of 
the Confines (Guatemala), directing it to give to the 
Licentiate Ortiz *' every encouragement and aid;" and 
by another of the same date (Doc. No. 38) the com- 
mission conferred upon the latter was reiterated, with 
new instructions; in the latter he was authorized, as 
he was in the former, to give lands to the settlers and 
to exempt them from imposts, so that one could almost 
say that it had the character of a carta de poblacion 



(Royal charter), like those which were given at the 
period of the Spanish reconquest. 

In both of these Royal cedulas the territory allotted 
to the Alcalde mayor' of Nicaragua is described in the 
same words which we have underlined in that of De- 
cember 13th, from which it may be instantly inferred 
that this territory was the same that was granted to 
Sanchez de Badajoz under the name of Costa Rica, 
and to Diego Gutierrez under that of Cartago, though 
it is described with less precision of boundaries than 
in the latter case. 

The illustrious French jurisconsult, Monsieur Poin- 
care, says in the third Memorandum in defense of Co- 
lombia (No. 30), that ''the province designated under 
the name of Costa Rica in the cedula of February 23, 
1560, and granted to the Licentiate Ortiz, Alcalde 
mayor of Nicaragua, did not embrace the ancient Prov 
ince of Veragua and was no more than a little scrap 
of land {un petit lamheau de terre) included between 
the Provinces of Honduras and Nicaragua and the 
Desaguadero. " 

But in reading this Royal cedula, the name of Costa 
Rica is not to be found; on the other hand, it may be 
observed that Monsieur Poincare has omitted the last 
part of the description * * * "on the side of the 
cities of Nombre de Dios and Panama, between the 
South Sea and that of the North." 

With the text thus clipped, the result for Colombia 
was that "le petit lamheau de terre" called Costa 
Rica was the Mosquito Coast extending from the Desa- 
giiudero or .iM\'or San Juan, toward the north, which 
later became the Province of Teguzgalpa. And if it 
is certain that this portion was also included in the 



37 

Costa Eica of Sanchez de Badajoz and the Cartago of 
Diego Gutierrez, it is not that the territory entrusted 
(not granted) to the Alcalde mayor of Nicaragua 
should terminate at the Desaguadero, but that it was 
extended ''to the side of {a la parte de) the cities of 
Nombre de Dios and Panama, between the South Sea 
and that of the North," that is to say, as far as Tierra 
Firme, which signifies a further abrogation of the 
Royal cedula of 1537, upon which Colombia bases her 
rights. 

(c) Juan de Cavallon (1560). 

While Philip II conferred upon Ortiz de Elgueta 
the commission mentioned, the Audiencia of the_Con- 
fines (Guatemala) gave a similar charge to the Licen- 
tiate Juan de Cavallon, who had been Alcalde mayor 
of Nicaragua ; and advised the King, on December 18, 
1559 (Doc. No. 35), that it had commanded him to 
make settlements in the Province of Veragua ''which 
is otherwise called by the name of New Cartago * * * 
in this district of ours;" the Audiencia also issued a 
Royal provision on January 30, 1560 (Doc. No. 36), by 
which the said Cavallon is granted the regulation and 
license to explore, settle and govern (with the title of 
Alcalde mayor) the Province of Cartago, or New Car- 
tago and Costa Rica, from that of Nicaragua. 

The King replied to the Audiencia of the Confines 
by the Royal cedula of July 18, 1560 (Doc. No. 39), 
which begins thus: 

"You state that the Province of Veragua, 
which is otherwise called by the name of New 
Cartago, is in that district of yours and border's 



38 

on the Province of Nicoya, where we always 
have a corregidor, * * *'» 

And referring to the propositions for its exploration 
and settlement, the King states as follows : 

"For the settlement of Nicoya and territory 
adjacent thereto, we have provided the Licen- 
tiate Ortiz, our Alcalde mayor of the Province 
of Nicaragua, to whom was given the commis- 
sion necessary therefor ; and as to the territory 
that there is in Veragua, on the side of Nata, 
Captain Francisco Vazquez has settled it by 
oui order. When the commission of each in 
examined by you, the proper order will bi 
given. ' ' 

Colombia has brought to her defense a report pre- 
pared by various distinguished archivists, librarians 
and lawyers of Seville, where the Archives of the In- 
dies are kept, concerning this Royal cedula of July 18, 
1560; they interpret it as follows: 

* * The King established with perfect clearness 
the difference that there is between the territory 
of Nicoya, the settlement of which had been 
entrusted to the Licentiate Ortiz, and the other 
territory not contiguous to Nicoya, territory be- 
longing to Veragua, and which, also by Royal 
order, the Captain Francisco Vazquez was set 
tling. The expression 'on the side of Nata' 
(por la parte de Natd) merely indicates the 
point from whence Francisco Vazquez set out 
with his men to conquer the territory of Ver- 
agua. ' ' 

Monsieur Poincare, making this report his own, 
states that there had been omitted in the copy of this 
Royal cedula, cited by Costa Rica, a comma after 



39 

**Veragua" and before "on the side of Nata," that 
the name of the Licentiate Ortiz has been confused 
with that of the Licentiate Cavallon, and that the grant 
to the Licentiate Ortiz was from Honduras as far as 
the Desaguadero (third Memorandum of Colombia, 
No. 30). 

Putting aside the latter assertion, which we have 
just refuted, we will say that the comma does not 
affect the sense of the text, which, indeed, could not be 
clearer. The Royal cedula does not place the territory 
of Nieoya in opposition to that of Veragua, nor does 
it say tliat only the former was entrusted to the Licen- 
tiate Ortiz, because the latter belonged to the othe: 
conquest which Francisco Vazquez had begun by Nata. 

What this Royal cedula does state, and most clearly, 
are the very conclusions we have just presented; that 
is, that the ancient Veragua had been divided into two 
parts ; one, the grant under the government of Fran- 
cisco Vazquez, by which the Province of Veragua was 
instituted; and the other, that which was entrusted 
to Ortiz de Elgueta, coterminous with Nieoya, and to 
which the Audiencia of the Confines referred in de- 
livering it to Cavallon, and of which, furthermore, the 
King had disposed in conferring it upon the former. 
The Royal cedula refers precisely to the commissiorv 
given to the Licenciate Ortiz who is mentioned therein 
by name, which commission was not revoked until later, 
and then in favor of Cavallon. It is impossible to 
interpret a legal document with any degree of certainty 
which is part of an historical series, without reading it 
in connection with its antecedents ; the best experts will 
fall into error if they do not follow this procedure or 
if they undertake to consider that document as an 
isolated fact. 



40 

How Cavallon himself interpreted the concessiou 
made to him by the Audiencia of the Confines is very 
clearly shown by the legal authority which he granted 
on September 22nd, 1560 (Doc. No. 41), to his asso- 
ciate and deputy, Juan Estrada Ravage, so that he 
might represent him in his charge and undertaking. 
Cavallon declares that the Province of Cartage and 
Costa Rica, the settlement of which belonged to him, 
'' * * * is all the territory that is left in the Prov- 
ince of Veragua, from sea to sea, inclusive, and 
which begins from where ends the square of 
twenty-five leagues that His Majesty granted to 
the Admiral Don Luis Columbus, towards the 
West * * * and it terminates at the Rio Grande, 
towards the West, on the other side of Cape 
Camaron. ' ' 

Philip II, who had, as we have seen, reserved the 
right to provide in regard to the matter, acted by Royal 
cedula of February 5, 1561 (Doc. No. 42), addressed to 
the Audiencia of the Confines, saying that he revoked 
the commission which he had given to Licentiate Ortiz, 
and directed that the Licentiate Cavallon execute it 
under the same conditions provided as to the former, 
and that, if the latter did not accept it, a Judge of the 
said Audiencia should go, or that body should appoint 
another person to carry out the commission in the same 
manner. The same directions were given in another 
Royal cedula of the same date, addressed to Cavallon. 

It is clearly understood that when the King turned 
over to Cavallon the undertaking he had entrusted to 
Ortiz, he performed an act of pure sovereignty, estab- 
lishing thereby a different demarcation of the Province 
of Veragua which was under the charge of Francisco 
Vazquez. 

In view of the results of the expeditions of Cavallon 



41 

the Audiencia of the Confines thereunto duly author- 
ized, appointed him, by Royal provision of May 17, 
1561 (Doc. No. 44), Alcalde mayor of New Cartage 
and Costa Rica, and stated that his jurisdiction, was 
to extend 

<i* # * f^oTo. the boundaries of the village of 
Nicoya, of the said Province of Nicarag'ua, for- 
ward * * * as far as the limits and jurisdiction 
of the city of Nata, of the Kingdom of Tierra 
Firme, called Castilla del Oro, the length of the 
land to the borders of the Dukedom of Veragua, 
and from the South Sea to the North Sea, as far 
as the Desaguadero, inclusive." 

The King, by Royal cedulas of August 4, 1561 (Doc. 
Nos. 45, 46 and 47), confirmed the appointment of 
Cavallon as Alcalde mayor and of Estrada Ravago as 
his representative, congratulating both at the same 
time upon the success of their expeditions, the one by 
land and the other by sea ; and he authorized Cavallon 
to go back whenever he might desire to reside in the 
Audiencia of the Confines, of which he was appointed 
the Fiscal. 

(d) Denial of the Request of the Governor of Tierra 
Firme, Figuerola (1561). 

Don Rafael Figuerola, Governor of Tierra Firme, 
having received word of the death of the Governor of 
the Province of Veragua, Francisco Vazquez, and that 
the Audiencia of the Confines had authorized the Li- 
centiate Cavallon "to make the entry into Costa Rica," 
applied to the King for his own appointment as Gov- 
ernor of the Province of Veragua, and asked that the 
entry into that of Costa Rica should be prohibited to 
everybody who did not come from him; he based this 



42 

latter request upon the fact that the Count of Nieva, 
Viceroy of Peru, had authorized him to enter into the 
Dukedom of Veragua, as he in fact had done, continu- 
ing into the ' ' interior territory, " as he showed in the 
report of an inquest, which accompanied his applica- 
tion (Doc. No. 233). 

Philip II communicated to him, by Royal cedula 
dated at Madrid on August 9th, 1561 (Doc. No. 48), 
the following resolution which is of the greatest im- 
portance to the question we are discussing : 

ti* * * ^g gQQjj j^g ^Q knew the death of 
Francisco Vazquez, whom We had designated 
for the government of the said Province of Vera- 
gua, We appointed for the said government 
Francisco Vazquez, his son * * *. And, also, 
We have approved and held to be good the said 
commission that was given by the said Audien- 
cia of the Confines to the said Licentiate Caval- 
lon, in order to make the exploration of the 
Province of Cartago and Costa Rica * * * j 
therefore, I command you that * * * you 
leave the Government of the said Province of 
Veragua to the said Francisco Vazquez, and that 
you do not interfere to explore and settle the 
said Province of Cartago and Costa Rica, but 
leave it to be done by the said Licentiate Caval- 
lon * * * and if you shall have made any 
discovery or settlement, you shall leave it in 
the state and condition it may be, without doing 
more therein ; and this you shall do and comply 
with under the penalties imposed upon persons 
who do not obey the commands of their King 
and natural Lord." 

Monsieur Poincare, in the third Memorandum of 
Colombia hereinbefore cited (No. 32), attaches little 
importance to this Royal cedula ; he says that it shows 



43 

that Costa Rica bordered on the Province of Veragua 
and was distinguished from it, but that the Province 
of Veragua was distinct from the old dukedom ''at- 
tached (rattache) to the city of Nata," and that just 
as it was defined by the Royal cedula of 1537 it be- 
longed jointly with the dukedom itself to the Audiencia 
of Panama. 

So, then, if Costa Rica bordered on the Province oc 
Veragua and was distinguished therefrom, it is clear 
that it was not the Province of Veragua. The petition 
of Don Rafael Figuerola giving expression to a per- 
sonal desire was the same as the claim of Colombia and 
was based upon the following syllogism : All Veragua 
constitutes one entity and belongs to the Government 
of Tierra Firme; the Dukedom of Veragua and 
Costa Rica are also Veragua and I am Gover- 
nor of Tierra Firme; therefore place me in pos- 
session of the Dukedom of Veragua and of Costa Rica. 
But the King denied his petition, declaring that Vera 
gua and Costa Rica were two distinct provinces, with 
different governments and forbade his interference in 
either of them. 

Substitute the name of Colombia or Panama for 
Figuerola, and that of the Arbitrator for Philip II, 
and the present conflict would be solved, without, how- 
ever, denying to Panama her rights over the Province 
of Veragua as differentiated from Costa Rica. 

(e) Vazquez de Coronado (1562). 

Cavallon having left to assume his office of Fiscal 
of the Audiencia of the Confines, the latter appointed 
Juan Vazquez de Coronado as Alcalde mayor of New 



44 

Cartago and Costa Rica, in the Royal provision of 
April 2, 1562 (Doc. No. 49), and prescribed for that 
office the same conditions as were imposed on Cavallon 
when the latter ''was given jurisdiction." 

Philip II, well pleased with the great services of 
Vazquez de Coronado, appointed him, by the Royal 
cedula of April 8, 1565 (Doc. No. 52), Governor for the 
whole of his life of "the Province and territory of 
Costa Rica/' with all the necessary civil and criminal 
jurisdiction. On the same date he also appointed him 
Governor of Nicarag-ua for three years, in order to 
facilitate the settlement of Costa Rica, conferred upon 
him the title of Adelantado of Costa Rica, for himself 
and his successors (Doc. No. 53), and made him a 
grant of a square of land four leagues on each side, 
wherever he might select them in the latter province. 
Costa Rica, therefore, as may be seen, remained con- 
stituted as such province and was to have its own 
governor — an office which was increased in importance 
through the fact that an Adelantado was going to be 
the first to hold it. 

The King instituted the province, provided, as 
stated, with a governor, under the single name of 
Costa Rica, and to it was given the same extension 
which was determined upon when it was alloted to 
Ortiz de Elgueta ; this is shown by the Royal cedula of 
August 7, 1565 (Doc. No. 54), directed to Coronado, 
which begins thus : 

"To Juan Vazquez de Coronado, our Gover- 
nor of the Province of Nicaragua and Costa 
Rica, and Adelantado of the said Province of 
Costa Rica ; Having been informed that between 
the said province of Nicaragua and that of Hon- 



45 

duras and the Desagiiadero of Nicaragua, on the 
side of (a la parte de) the cities of Nombre de 
Dios and Panama, between the South Sea and 
that of the North, lay the said PROVINCE OF 
COSTA BICA, and that there were therein many- 
Indians without light or knowledge of the faith, 
but who have shown a great desire to accept our 
authority, and receive the Christian doctrine, the 
President and Judges of our Royal Audiencia of 
the Confines ordered you and gave you a com- 
mission in our name and that you should go and 
make settlements therein * * * and place 
under our Crown and Royal Lordship the said 
* * * territory." 

And after stating what Coronado had done and that 
he, the King, had directed ''its consideration" in the 
Council of the Indies, he charged him that ' ' this terri- 
tory shall be settled and placed under good adminis- 
tration and order," for which purpose he gave to him 
the proper instruction. 

This Royal cedula is a repetition of the one directed 
to Ortiz de Egueta, and contains the same statemenr. 
of boundaries in almost the same language, but in this 
cedula the expression ''the Province of Costa Rica/' 
is used concretely, the direction given by the Audiencia 
of the Confines to Coronado is confirmed and the work 
of exploration and settlement already realized within 
those boundaries is approved, and authorization is 
given for its conclusion in the same way that it had 
been begun. 

(/) Perafdn de Ribera (1566). 

Vazquez de Coronado having perished on his return 
voyage to America, the King appointed Perafan de 



46 

Ribera Governor of the Province of Costa Rica, by 
tbe Royal cedula of July 19, 1566 (Doc. No. 56) ; this 
cednla, however, does not indicate the boundaries of 
the territory, the same having been already fixed; 
but it does state that the governor shall exercise his 
office ''in the matters that it has been customary for 
the Governors who have been up to this time in the 
said province to conduct. ' ' 

Perafan de Ribera continued the work of his prede- 
cessors, and presented to the King on July 28, 1571 
(Doc. No. 58), a "Relation of the Province of Costa 
Rica," in which he gives a report of his journeys and 
of the condition in which that province was found. 
Wearied by his labors and broken down by his mis- 
fortunes and poverty, he resigned his government and 
left the province in 1573. 

4. The Province of Costa Rica Definitively Or- 
ganized; Government of Artieda (1573). 

Cavallon, Estrada Ravago, Vazquez de Coronado 
and Perafan de Ribera were the ones who by their 
conquests and establishments created, in fact, the Prov- 
ince of Costa Rica and within the legal boundaries 
established by the Crown, at the initiation of that work 
of discovery and settlement, by the orders and in- 
structions given to the Alcalde mayor of Nicaragua, 
Ortiz de Elgueta. 

Philip II, knowing the results of the work he had 
undertaken, and considering the general advantages to 
be derived from those portions of his dominions, was 
able with full knowledge of the matter to definitively 
constitute the Province of Costa Rica and trace its 
boundaries with certainty, as he did by his Royal 



47 

cedula dated at the Pardo, December 1, 1573 (Doc. No. 
62). 

(a) Royal Cedula of Philip II, of December 1, 1573. 

This Royal cedula, issued after consultation with the 
Council of the Indies, contains the capitulacion with 
Diego de Artieda, to discover, settle and pacify, at his 
own cost, the Province of Costa Rica, for which pur- 
pose he was granted the Government and Captaincy- 
General of this province for his own life and that of 
an heir, with a salary of two thousand ducats. 

The conditions under which he was to settle and 
govern the province were minutely fixed, and its boun- 
daries indicated with great precision ; he was also di • 
rected therein to take possession in the name of the 
King *'of that which might not have been appropri- 
ated." 

Twice are the boundaries fixed: the first time in 
great detail, when the method to be xnasued in making 
the discovery and settlement is prescribed ; the second, 
in more concise terms, when the government is granted 
to Artieda. 

In this second description of the Province of Costa 
Rica, which Artieda is about to discover, settle, pacify 
and govern, the Royal cedula of 1573 says that it is 

''* * * from the North Sea to that of the 
South in latitude, and, in longitude from the 
borders of Nicaragua, on the side of Nicoya, 
straightforward to the Valleys of Chiriqui, as 
far as the Province of Veragua on the South 
side; and^ on that of the North, from the mouth's 
of the Desaguadero, which is on the side of 



43 

Nicaragua, all the territory as far as the Prov- 
ince of Veragua. ' ' 

According to this demarcation, by virtue of the 
Royal cedula of 1573, there was segregated from the 
Province of Costa Rica its upper part, from the Desa- 
guadero of Nicaragua northward; mth this part the 
Province of Teguzgalpa (on the Mosquito Coast) was 
formed, and the differentiation of the Pro^dnces of 
Costa Rica and Veragua was confirmed, thus leaving 
Costa Rica between Teguzgalpa and Veragua. 

{h) Formation of the Province of Teguzgalpa hy the 
Segregation of that of Costa Rica Prior to 1573. 

Comparing the demarcation of the Royal cedula of 
1573 with the earlier demarcations of Costa Rica, it 
will be at once observed in the description that part of 
those demarcations, '' between the Province of Nicar- 
agua and Honduras and the Desaguadero of Nicara- 
gua" was suppressed, by which suppressed part it had 
been made to reach from the latter as far as the River 
Grande and Cape Camaron. The Royal cedula fixed as 
the northern boundary of the Province of Costa Rica 
the Corregimiento of Nicoya and the Desaguadero of 
Nicaragua. 

By this adjustment tribute was paid to historical 
fact, and concession made to convenience in adminis- 
tration, for although that portion was included in the 
demarcation of Ortiz de Elgueta, those who, in ac 
cordance therewith — Cavallon, Estrada, Coronado and 
Ribera — made the conquest and the establishments of 
Costa Rica, concentrated their undertakings between 
the Desaguadero and the Province of Veragua, and the 



49 

King acted with much discernment in segregating the 
upper territory which, from its geographical form and 
its distance from the capital, presented great difficul- 
ties in the way of administration. 

This very segregation is the best proof of the error 
of Colombia's counsel who located the little scrap {le 
petit lamheau) called Costa Eica in the portion segre- 
gated, when in fact the province of that name was 
definitively constituted at the time it lost that portion. 

The result of that Royal cedula of 1573 was the issu- 
ance of that of February 10, 1576 (Doc, No. 65), by 
which Philip II created the Province of Teguzgalpa out 
of the segregated territory giving it by capitulacion to 
Diego Lopez for settlement and government — a region 
"which comprises all the territory that is included 
from the mouth of the Desaguadero on the North side 
as far as Cape Camaron, in the same direction where 
the Province of Honduras begins * * *" (Doc. No. 
234). 

This territory bordering on Honduras and with 
Nicaragua was for a long time disputed by these Re- 
publics, until His Majesty the King of Spain, as arbi- 
trator, decided the boundary question between the two 
in his Award of December 23, 1906 (Doc. No. 437), 
fixing the point of the divisionary line, for the part that 
belongs to each, at Cape Gracias a Dios. 

In that arbitration Don Francisco Silvela defended 
Honduras and Don Antonio Maura represented Nica 
ragua. These are the same two distinguished juris- 
consults who have defended the rights of Colombia 
by maintaining that to her belonged all of the Veragua 
of the year 1537, and making that province reach as 
far as Cape Gracias a Dios. 



50 

However, in the course of the argument in that arbi- 
tral proceeding, both agreed in disregarding the claims 
of Colombia to the territory of Veragua which began 
at the Desaguadero and which was called the Province 
of Teguzgalpa. 

Senor Silvela alleges, as one of the principal bases 
of the right of Honduras, the capitulacion of Artieda, 
of December 1, 1573, saying distinctly: ''THERE IS 
ONE SINGULAR THING IN THIS CAPITULA- 
CION AND THAT IS THE FIXING DEFINI- 
TIVELY OF THE BOUNDARIES OF COSTA 
RICA." {Alegato of Honduras, 1905, p. 128.) 

Senor Maura, in the Replica of Nicaragua, 1905, as- 
serts that the Cartago of Diego Gutierrez's capitula- 
cion of 1540 was framed out of the remains of the 
break-up or division of the ancient Province of Ver- 
agua (p. 109) ; that the capitulacion of Artieda, of 
1573, clearly distinguished Costa Rica from the Prov- 
ince of Nicaragua (p. 72) ; that nothing is so conclusive 
as the capitulacion of Diego Lopez, of 1576, in which 
there was included (in order to form the Province of 
Teguzgalpa) all of the territory from the Desagua- 
dero to Cape Camaron (p. 73) ; and that neither Hon- 
duras nor any one, casts doubt of the annexation to 
Nicaragua of the said coastal zone from the Desa- 
guadero or San Juan river toward the north or the 
northeast (p. 77). 

Costa Rica, then, can rely for support on the author- 
ity of Senores Silvela and Maura, counsel for Colom- 
bia, to combat the following broad assertion made by 
the latter in her Summary of Conclusions, presented 
to the President of the Republic of France and sub- 
scribed by Monsieur Poincare in Paris on July 4, 1900 : 



51 

''AH the Province of Veragua ought then to 
belong to Colombia. From its origin the Prov- 
ince of Veragua extended as far as Cape Gra- 
cias a Dios. (See the Royal cedula of March 2, 
1537.) It has never been divided. ' ' 

(Tonte la Province de Veragua doit done ap 
partenir a la Colombie. Des. I'origine, la Pro- 
vince de Veragua s'est etendue jusqu'au cap de 
Gracias a Dios (Voir Cedule Royale du 2 Mars 
1537). Elle n'a jamais ete divisee. 

{c) Boundaries With the Province of Veragua. 

The demarcation made to Ortiz de Elgueta (from 
the boundary of the segregated territory with which 
Teguzgalpa was formed) extended from sea to sea, 
"to the side of {a la parte de) the cities of Nombre 
de Dios and Panama." The Royal cedula of 1573 
clearly fixed the Province of Veragua as the end of 
Costa Rica, both on the north and on the south; it 
did more, since it expressly included wdthin Costa Rica 
the Bocas del Drago on the north, and on the south 
the Valleys of Chiriqui. 

In prescribing the manner in which Artieda was to 
carry out his charge, he is told "* * * and you 
shall settle in the Province of Costa Rica three cities, 
* * * one of which must be at the Port of Bocas del 
Drago, which is on the North Sea of said province. ' ' 

By this name of Bocas del Drago there was desig- 
nated the Bay of Almirante and the Lagoon of 
Chiriqui, into which empties the Guaymi, San Diego or 
Cricamola river, it being perfectly explained that its 
adjoining territories were included in Costa Rica be- 
cause they had been traversed and conquered by the 
founders of this province, with the approval and praise 



52 

of the King. Estrada Ravago founded, in 1560, the 
city of Castillo de Austria on the Bay of Almirante; 
Juan Vazquez de Coronado, in 1564, subjected all the 
tribes of Indians that occupied its banks nearly as far 
as the Escudo de Veragua; and Perafan de Ribera 
traversed the same territories in 1570 and 1571. 

Diego de Artieda always understood that they be- 
longed to his Government, as is shown by his deeds and 
his communications to the King, during the fourteen 
years in which he had it in charge. The Royal cedula 
of August 30, 1576 (Doc. No. 66), contains this phrase: 
<<* * * j^ being very well known that the said 
Guaymi river and Bocas del Drago and the Almirante 
Bay are the same thing. ' ' The former, in fulfillment of 
the duty of founding a city at Bocas del Drago, 
founded the one that he called '^Artieda/' on the banks 
of the Guaymi river, as is evidenced by the certificate 
of December 8, 1577 (Doc. No. 67) ; and afterwards he 
took possession of the Valley of Guaymi, as is evi- 
denced by a certificate delivered by a notary in March, 
1578 (Doc. No. 68). In front of this valley is the 
island called Escudo de Veragua. The King showed 
in his cedulas of June 3, 1580 (Doc. No. 69), that he 
was informed of and satisfied with the settlements 
made by Artieda at Bocas del Drago. 

After Artieda, the indication of Escudo de Veraguas 
was confirmed as the point of the divisionary line which 
left within Costa Rica the lands adjoining the Bay of 
Almirante and the Lagoon of Chiriqui. 

The Royal cedula of Philip III of May 31, 1600 (Doc. 
No. 71), directed to the Audiencia of Panama, indi- 
cated the Island of Escudo de Veragua as the end or 
western extremity of the warring Indian tribes of the 



S3 

Province of Veragua. In a certificate delivered by a 
notary on October 10, 1605 (Doc. No. 72), Don Diego 
de Sojo testifies that by virtue of the commission given 
to him by Don Juan de Ocon de Trillo, Governor and 
Captain-General of Costa Rica, and in the name of the 
King, he founded the city of Santiago de Talamanca 
and, he says, he 

It* * # indicated for it and gave to it for 
jurisdiction in latitude all the territory and dis- 
trict which there is from the summit of the Cor- 
dillera to the North Sea, and in longitude from 
the river Tarire and the ford that is crossed 
going from the said city to the Province of 
Tariaca, alljhe territory that runs to the Bast, 
which is the length of it as far as the Escudo 
DB Veragtja, which is the end that separates this 
Government from that of Veragua." 

The Province or region of Talamanca continued to 
belong to Costa Rica during the whole of the Spanish 
domination. 

The Valleys of Chiriqui constitute that part of the 
Province of Costa Rica which borders upon that of 
Veragua, on the Pacific side. Colombia argues in her 
Memoranda (Second, p. 89, and Third, No. 47), that tho 
capitulacion of Artieda does not speak of the Valleys 
of Chiriqui as a foreign frontier with Veragua, but 
only as designating a bearing, as though to say **in 
the direction of" those valleys. But the text of the 
Royal cedula of 1573 does not admit of this inter- 
pretation, for, in stating the longitude of the Province 
of Costa Rica, it says specifically, "from the borders 
of Nicaragua, on the side of Nicoya, straightforward 
(derecho a) to the Valleys of Chiriqui, as far as the 
Province of Veragua, on the South side. ' ' The direc- 



54 

tion was indicated by the South Sea, that is the Pacific 
Ocean ; and in this direction the Royal cedula expressly 
declared the right of Costa Rica to the Valleys of 
Chiriqui. If it is claimed that those valleys only indi- 
cated a direction, the longitude of Costa Rica may be 
continued still further beyond them and its terminal 
extended ''as far as the Province of Veragua." 

Such a declaration of right is not strange, inasmuch 
as Vazquez de Coronado and Perafan de Ribera had 
traversed and taken possession of the plains or savan- 
nas of Chiriqui, and had considered them to be within 
their jurisdiction. 

Although Costa Rica had the right to the Valleys of 
Chiriqui, the later governors tolerated the encroach- 
ments of the Governors of Veragua as far as the 
Chiriqui Vie jo river {old Chiriqui river — ^not to be 
confused with others of the same name not having this 
qualification) ; and this river was left as the divisionary 
line of Costa Rica, which meant for that country a loss 
of 208 .square leagues (1875 square miles). 



THE QUESTION OF BOUNDARIES SETTLED BY 

THE ROYAL CEDULA OF 1573 AND NOT 

BY THAT OF 1537. 

1. Importance, Confirmation and Subsistence of the 
Royal Cedula of 1573. 

The Royal cedula of Philip II of December 1, 1573, 
is immensely important because it settled the question 
of boundaries pending between the Republics of Costa 
Rica and Panama, as far as relates to Spanish colonial 



55 

law, for thereunder the Province of Costa Rica was 
definitively constituted and marked out; its legal ex- 
istence and delimitation, however, is denied by the Re- 
public of Panama, the successor to that of Colombia, 
on the assumption that it belonged to the latter as an 
integral part of the ancient Veragua. 

It results from all that has been said in the first part 
of our opinion, that the Royal cedula of 1573 marked 
the end of the historico-legal evolution of Veragua, 
from the time when the whole of the coast discovered 
by Columbus, from Cape Honduras to the point of 
San Bias, was understood by that designation until it 
came to constitute three distinct provinces: that of 
Veragua, properly so-called, that of Costa Rica and 
that of Teguzgalpa. The differentiation of the primi- 
tive Veragua into two parts, the Ducal Veragua and 
the Royal Veragua, began by the creation of the Duke- 
dom of Veragua (1537) and the granting of the capitu- 
lacion of Diego Gutierrez (1540), the result of which 
was the organization of two different provinces, in 
1560: the Province of Veragua, under Francisco 
Vazquez and that of Costa Rica under Cavallon. The 
Royal cedula of 1573 divides the latter into two parts : 
that which is called Teguzgalpa and that properly de- 
nominated Costa Rica, in which latter is included Bocas 
del Drago and the Valleys of Chiriqui, places border- 
ing upon the Province of Veragua. 

The demarcation established in this Royal cedula of 
1573 was confirmed: (1) by that of February 18, 1574 
(Doc. No. 63), which conferred upon Diego de Artieda 
the title of Governor and Captain-General of Costa 
Rica, and fixed at the same time the boundaries of his 
jurisdiction; (2) by the Royal cedula of December 29, 
1593 (Doc. No. 70), giving the government of this 



56 

province to Don Fernando de la Cueva ''as it was 
held by Diego de Artieda Chirino;" and (3) by the 
other Royal cedulas appointing governors and cap- 
tains-general, who held the position with the same 
salary and within the same bounded territory. 

This demarcation is also confirmed by the facts to 
which we have referred relating to the boundaries, and 
many acts of the Superior Government, of the aud- 
iencias and of the governors, relating thereto may be 
cited, since it was in force and subsisted until the end 
of the Spanish domination. Counsel for Colombia do 
not mention any other legal demarcation as a substi- 
tute therefor, aside from what is stated in order to 
impugn it; but seek for support in the Recopilacion 
de Indias and in the Royal order of 1803. 



2. InefScacy and Abrogation of the Royal Cedula of 

1537. 

Colombia concentrates all lier forces in support of 
the proposition that the queslion of boundaries with 
Costa Rica was settled by the Royal cedula of Carlos 
V, of March 2, 1537, which placed under the adminis- 
tration of Tierra Firme (Castilla del Oro) all that was 
left of Veragua after taking away the twenty-five 
leagues for the dukedom. 

This means that from Colombia's viewpoint there is 
no question of boundaries with Costa Rica; rather is 
it a question of ''to be or not to be," involving 
the very existence of the latter as a nation, 
for Colombia l)elieves that Costa Rica had no legal 
existence as a Spanish province and that her territory 



57 

belonged to that of Tierra Firme, aa did all of Royal 
Veragua. 

Bearing in mind that Charles V, by this Royal cednla, 
provided that Royal Veragua should be kept under 
the Government of Tierra Firme whilst he might deem 
it desirable, it will be easy to understand its ineffi- 
cacy against later dispositions of the Crown, since in 
issuing them it was not infringed. 

But if there is any desire to keep it alive, forgetting 
its conditional character, it must be said that it was 
repeatedly abrogated, whenever, indeed, the Sovereign 
made divisions of the territory of Veragua and cre- 
ated different governments from that of Tierra Firme, 
and also whenever he confirmed these changes. 

Thus, the Royal cedula of March 2, 1537, was abro- 
gated : 

1. By the Royal cedulas of November 29, and De- 
cember 16, 1540 (Doc. Nos. 18 and 19), giving under 
capitulacion to Diego Gutierrez the Province of Car- 
tago and appointing him the Governor thereof; that 
of January 11, 1541 (Doc. No. 20), directing all the 
governors of the Indies to respect the boundaries of 
this Government, and that of February 22, 1549 (Doc. 
No. 30), giving the title of Governor to Perez de 
Cabrera, as successor to Gutierrez. 

2. By the Royal cedula of December 13, 1559 (Doc. 
No. 34), establishing the demarcation which was given 
to Ortiz de Elgueta; that of February 23, 1560 (Doc. 
No. 37), ordering the Audiencia of Guatemala to re~ 
spect it; that of February 5, 1561 (Doc. No. 42), re- 
voking the commission given to Ortiz and turning it 
over on the same terms to Cavallon, and that of August 



58 

4, of the same year (Doc. No. 47), confirming the ap- 
pointment of Alcalde mayor given by the xludiencia to 
Cavallon, whose acts of settlement and those of his 
deputy Ravago were approved. 

3. By the Royal eedula of July 18, 1560 (Doc. No. 
39), which divided Veragua into two parts, one al- 
lotted to Ortiz de Elgueta and the other to Francisco 
Vazquez; that of August 20th of the same year (Doc. 
No. 40) appointing Francisco Vazquez Governor and 
Captain-General of the Province of Veragua ; and that 
of August 9, 1561 (Doc. No. 48) denying the claims of 
Figuerola, by right of his office of Governor of Tierra 
Firme and by order of the Viceroy of Peru, to govern 
and settle the Province of Veragua and that of Costa 
Rica, because these were under the respective charges 
of Alonso Vazquez and Cavallon — a most important 
eedula, therefore, inasmuch as those claims were the 
same as those now made by Colombia and Panama. 

4. By the Royal eedula of April 8, 1565 (Doc. No. 
53), appointing Vazquez de Coronado Governor and 
Captain-General of Costa Rica ; and by that of August 
7, following (Doc. No. 54), describing the province 
under his command in the same manner as in the com- 
mission given to Ortiz de Elgueta. 

5. By the Royal eedula of December 1, 1573 (Doc. 
No. 62), approving the capihdacion of Diego de Ar- 
tieda, by which Teguzgalpa was segregated from the 
Province of Costa Rica and the boundaries of the 
latter fixed with that of Veragua ; that of February 18, 
1574 (Doc. No. 63), conferring upon him the title of 
Governor and Captain-General of Costa Rica, with that 
demarcation; that of February 10, 1576 (Doc. No. 65), 
creating the Province of Teguzgalpa ; that of August 



59 

30 of the same year (Doc. No. 66), defining the boun- 
daries of Costa Eica by Bocas del Drago ; and that of 
June 3, 1580 (Doc. No. 69), approving the conduct of 
Diego de Artieda in respect to the settlements he made 
within the limits of his jurisdiction. 

6. By the Eoyal cedula of December 29, 1593 (Doc. 
No. 70), granting to Don Fernando de la Cueva the 
Government of Costa Rica as it had been held by Diego 
de Artieda ; the appointment of the later governors of 
Costa Eica and the disposition concerning the adja- 
cent audiencias, of which we will speak later. 

There can not, then, be the slightest doubt that the 
Province of Costa Eica was legally constituted and 
marked out by the Eoyal cedula of Philip II, of 1573, 
and not by that of Carlos V of 1537, which was in- 
effectual in itself and the subject of so many abroga- 
tions. 



60 



PART SECOND 

The Recopilacion de Indias Respected and Con- 
firmed the Existence and Demarcation of Costa 
Rica. 

SUMMARY. 

I. The Recopilacion de Indias and its Abrogative 

Force. 

1. The Argument of Colombia. 

2. General Consideration Concerning the Recopila- 

cion de Indias and How Its Laws Eespect and 
Confirm the Existence and Demarcation of 
Costa Eica. 

II. The Demarcation of the Audiencias. 

r. 

1. Importance of the Audiencias in the Government 

of the Indies. 

2. History of the Audiencias of Panama and Guate- 

mala. 

3. Comparison Between Laws 4 and 6 of Title 15, 

Book II, Which Treat of These Audiencias. 

4. Interpretation of Law 4 ; What Were Castilla dei 

Oro, Nata and the Government of Veragua, 
Which Were Included by Tha^. Law in the 
Audiencia of Panama. 

5. Interpretation of Law 6; The Omission of the 

Name of Costa Rica of no Importance in 
Treatina: of the Audiencia of Guatemala. 



il 

in. Costa Rica was Expressly Recognized by the Re- 
copilacion as a Province of the Audienda of 
Guatemala of the Viceroyalty of Mexico. 

1. Law 1, Title 2, Book V, of the Recopilacion; Its 

Importance. 

2. This Law is a Resultant of the History of Costa 

■ Rica, Which Always Depended Upon the 
Audiencia of Guatemala : 

(a) From the Creation of that Audiencia to 1563: 

(b) From its Reestablishment (1568) Down to the 

Promulgation of the Recopilacion (1680). 

IV. Interpretation of Law 9, Title 1, Book V, Declar- 

ing that the Whole of the Province of Veragua 
is Under the Government of Tierra Firme. 

1. It is Not Possible to Refer to the Veragua of 

1537, as Constituting the Whole of Veragua. 

2. Nor is the Hypothesis Admissible that Veragua is 

a Major and Costa Rica a Minor Province. 

3. Explanation of this Law, by Making it Refer to 

the Province Emanating From the Dukedom. 

4. Case of Supposed Contradiction of This Law 

With Others. 

V. Validity of the Royal Cedulas Which Are Demar 

catory Accor^g to the Recopilacion. 

1. Principles Established by the Recopilacion in Re- 
gard to the Validity of the Royal Cedulas 
Prior and Subsequent Thereto. 



6Z 

2. Legality of Territorial Division and the Boun- 

daries of Districts. 

3. Special Consideration of the Capitulaciones: 

(a) Juridical Character of the Capitulaciones; 

(b) The Capitulaciones in the Light of Book 4 of 

the Recopilacion; 
(e) Capitulaciones Originating the Provinces of 
Veragua and Costa Rica. 

4. Unilateral Acts of the Crown in the Unquestion- 

able Exercise of Sovereignty and Titles of the 
Governors ; Final Deductions. 



I. 



THE RECOPILACION DE INDIAS AND ITS AB- 
ROGATIVE FORCE. 

1. The Argument of Colombia. 

It seems impossible, after what we have said with 
respect to the inefficacy of the Royal cedula of March 
2, 1537, and its numerous abrogations (especially by 
that of 1573), that Colombia could have maintained the 
subsistence of the former in contravention of the legal 
principle that ''the later law abrogates the prior ones.'* 
But she did; because, relying on this same principle, 
she gives it as her understanding that the Recopilacion 
de Indias reestablished the cedula of 1537 and repealed 
all the dispositions that had abrogated it. 

Senor Silvela and Monsieur Poincare, in their briefs 
in defense of Colombia, rely upon the Royal cedula of 
Charles II, of May 18, 1680 (Doc. No. 91), which sane- 



03 

tioned the Recopilacion, and which was published at 
the beginning of it, when they make the assertion that 
this code — a summary of all the Royal dispositions 
which constituted the system of government for the 
dominions of Spain beyond the seas — abrogated every- 
thing that was not included within it, because the King 
said, **it is our will that from now forward they shall 
not have any authority whatever. * ' 

Senor Maura in his opinion embodied in the defense 
of Colombia, formulates ' ' the synthetical idea, ' ' of the 
litigation, saying that none of the documents prior to 
the Royal cedula of May 18, 1680, can be taken into 
consideration, except under the condition that they be 
submitted to the obligatory force of the compiled laws, 
which in every case must prevail over contrary dis- 
position; and after adding that this principle greatly 
simplifies the litigation, he goes on to show that the 
Compilation of the Laws of the Indies was not a mere 
collection but a real body of laws in which was re- 
enacted all the preceding legislation, with the repeal 
thereby of whatever was not included, as was done in 
the "Fuero Juzgo," (ancient laws by the Gothic 
Kings), the "Fuero Viejo," (ancient laws), the "Siete 
Partidas" (the laws of Castile compiled by King Al- 
fonso the Tenth) and the statutory compilations of 
Aragon, Catalonia, Navarre and Majorca. 

Starting from this basis, counsel for Colombia deny 
the existence of the Province of Costa Rica, on the 
ground that they do not find it mentioned in the laws 
fixing demarcations of audiencias; they merge it in 
the Province of Veragua, and put the latter back under 
the Royal cedula of 1537 because they find the latter 
cited in one of the laws, and, finally, take from the 



64 

Royal cedulas that fix boundaries all of their authority, 
because they do not find them converted into laws. 

2. General Consideration Concerning the Recopila- 
don de Tndias and How Its Laws Respect and Con- 
firm the Existence and Demarcation of Costa Rica, 

The Recopilacion of the Laws of the Indies was not, 
in fact, a collection (repertorio or repertoire) compiled 
with the single purpose of facilitating a knowledge of 
the old dispositions ; neither was it a code in the scien- 
tific acceptation of that word; that is a coordinate 
grouping of a particular system of laws under ono 
common principle of unity, formulated once for all and 
without continuous references to ancient laws further 
than may be inspired thereby. 

The Recopilacion de Indias was, like all compila- 
tions, a collection of the laws of various periods. The 
texts of these laws were reproduced, in whole, or part, 
or in modified form, the chronological sequence of some 
having been changed for greater convenience, and the 
citation of its origin or source having been inserted 
at the head, or on the margin, of each; and it is clear 
that it may be compared, in this respect, with other 
compilations which were made in Spain, with the ex- 
ception of Siete Partidas, which possessed the char- 
acteristics of a code. 

It is certain that the Recopilacion de Indias did have 
abrogative force; not absolute, however, as the coun- 
sel for Colombia assert, but limited, as was clearly 
expressed in said Royal cedula of Carlos II, of May 18, 
1680, the latter part of which counsel persistently 
omit. This Royal cedula, after directing that the Laws 
of the Recopilacion shall control, specifically states, 



65 

< < * * * leaving in their force and vigor the Cedu- 
las and Ordinances given to our Eoyal Andien- 
cias, in so far as they are not contrary to the 
Laws herein. ' ' 
And in various texts of the Recopilacion the 
subsistence of prior dispositions is declared, always, 
of course, under the condition that they are not con- 
trary to the said laws. 

Therefore, the Laws of the Recopilacion respect and 
confirm the existence of the Province of Costa Eica, 
since, far from suppressing it, they expressly recog- 
nized it ; they respect and confirm also the boundaries 
which it then had, as they did not modify the demar- 
cation of audiencias, and the law concerning the boun- 
daries of governments declares in force the existing 
legal situation. 

In the development of this thesis, we will take up all 
the questions which have been the subject of contro- 
versy and relate to the Recopilacion de Indias, ex- 
pounding them in the order which we consider most 
desirable for clearness in the demonstration. 

11. 

THE DEMARCATION OF THE AUDIENCIAS. 

1. Importance of the Audiencias in the Government 
of the Indies. 

Charles V divided the government of the American 
territories into two great viceroyalties, that of New 
Spain (Mexico) and that of Peru; he subdivided the 
former into the four audiencias, of Santo Domingo, 
Mexico, Guatemala and Guadalajara, which he cre- 
ated; and the second into the three audiencias of Pan- 



66 

ama, Lima and Santa Fe, which he also created. The 
number of the audiencias in Peru was increased by 
Philip II, with the addition of those of Charcas and 
Quito, by Philip III ivith that of Chile, and, by Philip 
IV, with that of Buenos Aires. 

This division of territory into audiencias was not 
merely judicial, but of a general character and admir- 
ably adapted. Each audiencia had under its charge, 
besides the administration of justice, the entire civil 
and even military government of the provinces in- 
cluded in its district. 

Law 1, title 15, book II (Doc. No. 105), of the Re- 
copilacidn, states that in all the territory that had been 
discovered up to that time in the Kingdom and Seign- 
ories of the Indies, there were founded twelve audi- 
encias and Royal chancelleries (the eleven mentioned 
and that of Manila), ''* * * in order that our vas- 
sals may have those who may govern and rule them 
in peace and ^■.dth justice ; and whereas their districts 
have been divided into Government, Corregimientos 
and Alcaldias mayores * * * which are subordi- 
nate to the Royal Audiencia * * *." 

And in this same title the boundaries of the district 
of each one of them are indicated. 

The fact, therefore, that a province belonged to a 
particular audiencia, not only signified that it de- 
pended upon it judicially, but also for civil government. 

2. History of the Audiencias of Panama and Guate- 
mala. 

Colombia, starting out with the theory that she is 
the heir of the wliole of the territory which was under 
the Audiencia of Panama (also called Tierra Firme) 



«7 

makes every effort to prove that the Recopilacion, in 
including all of the Province of Veragua in the Gov- 
ernment of Tierra Firme — according to the Royal 
cedula of 1537 — also included the territory of Costa 
Rica by reason of its being comprehended in the Ver- 
agua of that epoch. Leaving till later the interpreta- 
tion of the law which especially refers to the Province 
of Veragua, and which, as we shall see, is the province 
that arose out of the dukedom, let us now examine 
the laws that treat of the demarcation of the Audi- 
encias of Panama and Guatemala. But before doing 
so, the history of those two audiencias should be brieflv 
related because it is quite complicated, and also be- 
cause it will tend to dissipate another of the equivoques 
of which Colombia has made use in her quibbling; to 
wit, that the Audiencia of Panama was a very different 
thing, according to whether it is taken as existing 
alone in that part of America, or in co-existence with 
that of Guatemala. 

The Audiencia of Santo Domingo of the Island of 
Espaiiola was founded in 1526, the first of those estab- 
lished in the Indies, and it had under its jurisdiction, 
besides, the islands of the Sea of the xintilles, the terri- 
tories on the coast discovered by Columbus during his 
last voyage, to which were given the name of Veragua, 
and the rest which were discovered on the Isthmus and 
in southern America. 

But at the same time that the conquest and govern- 
ment of Veragua was being organized under Felipe 
Gutierrez and the Dukedom of Veragua created — and 
perhaps with the latter creation in view — the establish 
ment of another audiencia was under way ; to this was 
given the name of Panama in Tierra Firme. We infer 
this from Law 4, title 15, book II, of the Recopilacion 



48 

(Doc. 106), referring to this audiencia, which cites as 
the origin thereof the Royal cedula of February 30, 
1535, issued two months after the approval of the 
capitulacion with Felipe Gutierrez, and that of March 
2, 1537; that is, when this capitulacion was revoked, 
the existence of the dukedom (created in the same 
year) was ratified, and it was declared that the rest 
of Veragua would be understood to be under the gov- 
ernment of the Province of Tierra Firme, called Cas 
tilla del Oro, until the Crown should otherwise provide. 
The Audiencia of Panama, which was constituted 
by the Eoyal cedula and ordinances of February 26, 
1538 (Doc. No. 14), comprised within its district "the 
Provir.ce of Tierra Firme, called Castilla del Oro, and 
Provinces of the Rio de la Plata and the Strait of 
Magellan, and New Toledo and New Castile, called 
Peru, and River San Juan, Nicaragua and Cartagena 
and Dukedorn of Zoroharo, and whatever islands and 
provinces there might be both on the South Sea as 
well as on the North Sea." 

In view of the impossibility of governing such an 
enorm.ous territory (Central and South America), and 
after the death of Pizarro in Peru and of Alvarado in 
New Spain, Charles V divided it in his Ordinances of 
Barcelona, November 20, 1542 (Doc. No. 26), called 
the "New Laws" and also "Laws of Reformation ot' 
the Indies, ' ' by suppressing the Audiencia of Panama, 
creating the Viceroyalty of Peru with an audiencia in 
Lima and directing another audiencia to be estab- 
lished "within the confines of Guatemala and Nicar 
agua * * *" which "shall have under its charge 
the government of said provinces and adjacent re- 
gions. ' ' 

By the Royal cedula of September 13, 1543 (Doc. 



69 

No. 27), this latter audiencia was in fact created, and 
denominated the Audiencia of the Confines (of the 
confines, or borders, of Guatemala), comprising within 
its district the provinces of Guatemala, Nicaragua, 
Chiapa, Yocatan, Cozumel, Higueras, Cape Honduras 
< < * « * g^j^ J g^jj Q^jjgj. provinces and islands that there 
may be on the coast and in the region of the said 
provinces as far as the Province of Tierra Firme 
called Castilla del Oro, inclusive ' ' ; that is to say, the 
whole of Central America, including Veragua, although 
it was not mentioned. This audiencia was first in- 
stalled in the city of Gracias a Dios (1544) and after- 
wards transferred to that of Santiago de los Cabal- 
leros de Guatemala (1550), and from which it was 
given the latter name. 

But in moving from one capital to another, its 
district was reduced ; Castilla del Oro was lost to it in 
consequence of the reform made in the Audiencia of 
Lima whereby a part of the latter was taken away to 
form the Audiencia of Santa Fe de Bogota in the New 
Kingdom of Granada, in obedience to the Royal cedula 
of June 17, 1549. And there is not the slightest doubt 
but that Castilla del Oro was separated from the 
Audiencia of the Confines, or Guatemala, and there- 
fore from Veragua, for the Royal cedula of Charles V 
of May 2, 1550 (Doc. No. 133), which is Law 7, title 1, 
book V, of the Recopilacion de Indias, specifically says : 

"We command that the Province of Tierra 
Firme, called Castilla del Oro, shall belong to 
the Provinces of Peru and not to those of New 
Spain (Mexico)." 

Abuses committed by the Audiencia of the Confines, 
or Guatemala, and the convenience of better service, 



70 

led to its transformation into the Audiencia of Pan- 
ama, upon the territorial basis of that of Guatemala, 
with important modifications, however, by the Royal 
cedula of Philip II, of September 8, 1563 (Doc. No. 
50) ; and its headquarters were transferred to the city 
of Panama. The audiencia lost, according to that 
cedula, the Province of Guatemala and other terri- 
tories in the north, and was given for a boundary the 
Gulf of Fonseca, exclusive, and the Uliia river, and it 
gained the Province of Castilla del Oro as far as the 
Darien river, exclusive. 

The Viceroy and the Audiencia of New Spain (Mex- 
ico) stated to the King, on February 26, 1564, the de- 
y fects in this reform, and begged that the Audiencia of 

Guatemala might be re-established; this petition was 
granted in January, 1567, and that audiencia replaced 
in the condition it was prior to 1563. The Royal cedula 
of June 28, 1568 (Doc. No. 57), expressly designated as 
integral parts thereof, the Provinces of Guatemala, 
Chiapa, Higueras, Verapaz, Cape Honduras, and Nic- 
aragua "* * * and whatever other islands and 
provinces there may be on the coast and in the region 
of the said provinces, as far as the Province of Nicar- 
agua. ' ' This audiencia was again installed in the city 
of Santiago de los Caballeros on March 3, 1570. 

The Audiencia of Panama, however, did not dis- 
appear ; there remained within it, in 1570, Tierra Firme 
and the Province of Veragua which had been consti- 
tuted in 1560, but not that of Costa Rica which was 
contiguous mth the Province of Nicaragua. 

The Audiencia of Guatemala continued thereafter 
as a dependency of the Viceroyalty of Mexico, whilst 
that of Patwnia, after the re-establishment of the latter, 



7t 

belonged to the Viceroyalty of Peru, and they were, 
respectively, the extremes and frontiers of the two 
viceroyalties. 

3. Comparison Between Laws 4 and 6, of Title 15, 
Book II, Which Treat of These Audiencias. 

Law 4, title 15, book II (Doc. No. 106), of the Re- 
copilacion de Indias (according to the Royal cedulas 
which it cites with others as complements thereof, and 
to what was provided by Philip IV in the same Re- 
copilacion), designates in the following manner the 
district of the Audiencia of Panama: 

"It shall have for district the Province of 
Castilla del Oro, as far as Puertobelo and its 
territory; the city of Nata and its territory, 
the Government of Veragua; and, upon the 
South Sea, toward Peru, as far as the Port 
Buenaventura, exclusive; and from Puertobelo 
toward Cartagena, to the River Darien, exclu 
sive, with the Gulf of Uraba and Tierra Firme 



And in fixing the boundaries of this district, it says : 

li* * * bordering on the East and South 
upon the Audiencias of the New Kingdom of 
Granada and San Francisco de Quito; on th^ 
West with that of Santiago de Guatemala; and 
upon the North and South, upon the two seas 
of the North and South. ' ' 

Law 6 of the same title and book (Doc. No. 107), 
of the Recopilacion (according to the cedulas men- 
tioned, which it cites with other complementary 
cedulas, and to what was provided by Philip IV), es- 



tablished the district of the Audiencia of Guatemala, 
as follows : 

"It shall have for its district the said Prov- 
ince of Guatemala, and those of Nicaragua, 
Chiapa, Higueras, Cape Honduras, Verapaz and 
Soconusco, with the islands of the coast.'' 

And it adds : 

a* * * bordering on the East upon the 
Audiencia of Tierra Firme, on the West, upo i 
that of New Galicia, and upon the latter and 
the North Sea, on the North, and, on the South, 
upon the South Sea. ' ' 

The first thing that is noted in comparing these two 
laws is that no geographical dividing line is desig- 
nated between the Audiencia of Guatemala and that 
of Panama. They only state that one begins where 
the other ends ; therefore they do not settle the ques- 
tion of boundaries between the Provinces of Costa 
Rica and Veragua. 

But from the enumeration made by these two laws 
of the provinces which are comprised in each of these 
audiencias counsel for Colombia deduce that the ter- 
ritory of Costa Rica was included in the Audiencia 
of Panama, because this province does not appear to 
be mentioned by Law 6 as among those of the Audi- 
encia of Guatemala, whereas Law 4 expressly includes 
the Government of Veragua in that of Panama. 

Let us see in the first place how far Law 4 goes 
with regard to the explicit inclusion, that being the 
aflfinuative part of the argument; we shall see later 
what may be the effect of the omission of the name iu 
Law 6. 



73 

4. Interpretation of Law 4; What Were Castilla del 
Oro, Kata and the Government of Veragua, Which 
Were Included by That Law in the Audiencia of 
Panama. 

Law 4 begins the description of the Audiencia of 
Panama with the Province of Castilla del Oro, from 
Portobelo as far as the Darien river, exchisive. This 
province which, in some demarcations, appears as the 
extreme hmit of Royal Veragua, was included in the 
Audiencia of the Confines, or Guatemala, on the ere 
ation of the latter in 1543; but the Eoyal cedula of 
May 2, 1550, directed that it should belong to the Vice- 
royalty of Peru and not to that of New Spain (Mexico). 
It returned to the Audiencia of the Confines when it 
was transferred to Panama, in 1563, and remained in 
that of Panama when the latter was dismembered by 
the re-establishment of the Audiencia of Guatemala, 
in 1568; and in the Audiencia of Panama it was re- 
tained by the Recopilacion de Indias. These fluctua- 
tions reveal the fact that it was an intermediate prov- 
ince between the Viceroyalties of Mexico and Peru, 
in which the jurisdiction of the latter prevailed. 

In the direction of New Spain, Law 4, locates the 
city of Natd and its territory after Castilla del Oro, 
and lastly the Government of Veragua. Counsel for 
Colombia, continuing to juggle with the equivoque in- 
volving this name, understand that this Government 
of Veragua was the Royal Veragua, in which Costa 
Rica was included, and not the Ducal Veragua, for the 
latter has been added to the city and territory of Natd. 

To dissipate this erroneous interpretation, it is 
enough to refer to what we have said in Paet Fiest, 
concerning the transformation of the Dukedom into 



74 

the Province of Veragua. When the dukedom was sup- 
pressed it was not added to Natd, but the residents of 
that city were authorized to go into that country for 
conquest and settlement ; and it was by virtue of that 
authority that Francisco Vazquez went there with his 
men; he it was whom the Crown appointed, soon after- 
wards, Governor of the province that was then left 
definitively constituted (1560) under the name of Ver- 
agua (Ducal Veragua) ; and this is the Government to 
which Law 4 alludes, after speaking of the city of Nata 
and its territory. 

Natd, from its origin, in 1520, always belonged to 
the jurisdiction of Panama (Province and Audiencia), 
and was administered by an Alcalde mayor appointed 
by the Governor or President of the Audiencia of 
Tierra Firme. The Province of Veragua, which was 
formed from the dukedom, was raised to the status 
of a government and captaincy-general, which office 
was provided for by the King himself, it having by 
reason of its class and salary a higher rank than that 
of alcalde. Far from the Province of Veragua being 
united, or subordinated to the city of Nata, the resi- 
dents of the latter were the ones who, tired of their 
alcaldes mayores, petitioned for the aggregation of 
their city to that province ; but without success. 

It cannot, therefore, be successfully maintained that 
the Dukedom of Veragua was comprised in Nata, in 
order, later, to include Costa Rica in the *' Govern- 
ment of Veragua." The farthest counsel for Colombia 
can go is to consider the two Veraguas — ducal and 
royal — under this denomination. But to this is op 
posed the history of the formation of the two provinces 
of Veragua and Costa Rica, the fact of their existence 
at the time the Recopilacion was made, and the pro- 



75 

visions of that Compilation, in its Law 1, title 2, book 
V (Doc. No. 136), entitled, " de provision de oficios" 
(provisions for appointments to office), under which 
there was reserved to the King the right to fill the 
office of Governor and Captain-General of the Province 
of Veragua (with a salary of one thousand pesos), 
which is '*in our Royal Audiencia of Panama," of Peku, 
and that of the Governor and Captain-General of the 
Province of Costa Rica (with a salary of two thousand 
ducats), which is *'in our Royal Audiencia of Guate- 
mala/' of New Spain. 

In deference to this law, promulgated in the time of 
Charles II, when the Recopilacion was compiled, it is 
not possible to interpret the ''Government of Ver- 
agua ' ' by merging therein the Province of Costa Rica. 

5. Interpretation of Law 6. The Omission of the 
Name of Costa Rica of no Importance in Treating 
of the Audiencia of Guatemala. 

It is clearly established from what we have just said, 
that the Government of Costa Rica was included in 
the Audiencia of Guatemala, since it was so expressed 
in the Recopilacion itself, and it was a thing distinct 
from the Government of Veragua, with which the de- 
marcation of the Audiencia of Panama ends, as stated 
by Law 4. 

The description made by Law 6 of the Audiencia 
of Guatemala is less detailed, doubtless because those 
who prepared the Recopilacion did not consider it 
necessary, after having specifically provided, in Law 4, 
that the Audiencia of Panama terminated with the 
Government of Veragua, deeming it sufficient to affirm 



76 

that that of Guatemala bordered with it on the east- 
The omission of the name of Costa Rica is explained 
also by the fact that instead of writing an entirely- 
new law, they took for a text that of the Eoyal cedula 
of June 28, 1568, which, with some corrections, they in- 
serted in the Recopilacion. And as the main object of 
this Royal cedula was the advantage of leaving well 
determined the northern part, which, upon the re-es- 
tablishment of the Audiencia of Guatemala, was united 
to that audiencia, no description was made of the lower 
part, which had always belonged to the Audiencia of 
the Confines, for it was not the subject of doubt. 

But, although Costa Rica was not named in said 
Royal cedula, it was comprehended within the clause, 
<<* * * and whatever other islands and provinces 
there may be on the coast and in the region of the 
said provinces," among which was mentioned that of 
Nicaragua. In ordering the promulgation of the * * New 
Laws" of 1542, which created the Audiencia of th-i 
Confines (of Guatemala and Nicaragua), it was pro- 
vided that it should have under its charge ''* * * 
the Government of the said province and adjacent re- 
gions," a phrase similar to that employed in the re- 
establishment of that Audiencia, in 1568, under the 
denomination of * ' Guatemala. ' ' 

The Audiencia of Guatemala having been re-estab- 
lished, that of Panama was advised, by Royal cedula 
of August 12, 1571 (Doc. No. 59), that it must no 
longer concern itself with the affairs of the former, 
while the Royal cedula of July 17, 1572 (Doc. No. 61), 
bestowed upon the Audiencia of Guatemala jurisdic- 
tion over the affairs of the Provinces of Nicaragua and 
Costa Rica. 



77 

The affairs of Costa Eica continued to be depend- 
ent upon the Audiencia of Guatemala when the Re- 
copilacion de Indias was published in 1680 ; and coun- 
sel for Colombia resort to the argument that even if 
Costa Rica had existed legally as a province, the omis- 
sion of its name in the laws of demarcation of the 
contiguous audiencias signified its suppression, and 
that the Becopilacion de Indias thus abrogated the 
prior Royal cedulas relating to it. 

But although Law 6 does not mention the Province 
of Costa Rica, it includes it between Nicaragua and the 
divisionary line of the district of the Audiencia of 
Guatemala, unless it be assumed, as Colombia does 
assume, that the Government of Veragua, of the Audi- 
encia of Panama, reached as far as Nicaragua. And 
having proved that that Government did not include 
that of Costa Rica, which was recognized by the Re- 
copilacion as a province belonging to the Audiencia of 
Guatemala, it must be agreed that Costa Rica was not 
suppressed by Law 6, although it was not expressly 
mentioned therein. 

To the foregoing we must add that the laws of de- 
marcation of audiencias are not laws of creation and 
suppression of component provinces of their respective 
districts, but of differentiation of one from another, 
for the purpose of establishing the external boundaries 
of the territorial jurisdictions of those audiencias. 

Whatever subtleties counsel for Colombia may ap- 
peal to in order to show that the Province of Costa 
Rica caine to an end with the publication of the Recop- 
ilacion de Indias, their purpose cannot succeed in the 
face of the decisive reason that the latter expressly 
recognizes it and its author provided for its needs as 
such province. 



78 
III. 



COSTA PJCA WAS EXPRESSLY RECOGNIZED BY 
THE RECOPILAOIOH AS A PROVINCE OF THE 
AUDIENCIA OF GUATEMALA OP THE VICE- 
ROYALTY OF MEXICO. 

1. Law 1, Title 2, Book V, of the Recopilacion; Its 
Importance. 

The Kings of Spain having reserved to themselves 
the power to fill directly the offices of viceroys, cap- 
tains-general, presidents and judges of audiencias, and 
the most important governments, corregimientos and 
alcaldias mayores, the Law 1, title 2, book V, of the 
Recopilacion enumerated all of these offices with their 
annual compensations, and submitted them, classified 
under audiencias, for each of the two viceroyalties. 

The enumeration of the offices under the provision 
of the Crown, in the Viceroyalty of Peru, begins with 
the Audiencia of Panama, in which district it says : 

a* * * ^^ have to provide the post of 
Governor and Captain-General of the Province 
of Tierra Firme and President of the Royal 
Audiencia for eight years, which has a salary 
of four thousand five hundred ducats ; and thac 
of Governor and Captain-General of the Prov- 
ince of Veragua, with one thousand pesos ensay- 
ados (assayed dollars) ; the Government of the 
Island of Santa Catalina, with two thousand 
pesos; and the Alcaldia mayor of San Felipe de 
Portobelo, with six hundred ducats." 

It then proceeds to speak of the other audiencias of 
this Viceroyalty, that is to say, those of Lima, Santa 
Fe, Charcas, Quito, Chile and Buenos Ayres. 



79 

Under the denomination of New Spain, the law 
enumerates the offices under the provision of the King 
in the Audiencias of Santo Domingo, Mexico, Guada- 
lajara and Guatemala, in respect to which it says : 

''In the district of our Royal Audiencia of 
Guatemala, the post of Governor and Captain- 
General and President of the Audiencia, for 
eight years, with a salary of five thousand 
ducats; that of Governor and Captain-General 
of Valladolid de Comayagua, with two thousand 
pesos de minas (mined dollars) ; that of Gov- 
EENOR AND Captain-General of the Province 
of COSTA RICA, with two thousand ducats : that 
of Governor and Captain-General of the Prov- 
ince of Honduras, with one thousand pesos de 
minas; that of Governor of Nicaragua, with on:i 
thousand ducats; that of Soconusco, with six 
hundred pesos de minas, and the Alcaldias 
may ores of Verapaz, Chiapa, Nicoya, etc." 

This law offers an almost complete exposition of the 
organization of the Spanish Colonial Government, by 
viceroyalties, audiencias, provincial governments and 
alcaldias may ores; it is at once a law of territorial di- 
vision and one making appropriations. 

As it states itself, the law was enacted by "Don 
Carlos II and the governing Queen, in this Recopila- 
cion," in consultation with the Council and upon re- 
ports from the Secretaryships of Peru and New Spain. 
It is, therefore, of great importance as being a faithful 
expression of the reality of the administrative division 
at the very date on which the Recopilacion was pub- 
lished (1680) and as affording a solution for the doubts 
that might arise from prior enactments in the inter- 
pretation of other laws of this Code. 



80 

2. This Law Is a Resultant of the History of Costa 
Rica, Which Always Depended Upon the Audiencia 
of Guatemala. 

The Law I, of title 2, book V, in specifically declar- 
ing that the Grovernment and Oaptaincy-G-eneral of 
the Province of Costa Rica belonged to the Audiencia 
of Guatemala and Viceroyalty of Mexico, not only rec- 
ognized the existence of that province, but it brought 
to the Recopilacion the result of its history, confirming 
and ratifying such jurisdictional dependency. 

(a) From the Creation of That Audiencia to 1563. 

The importance that was given to primitive Veragua 
by the capitulacion of Felipe Gutierrez and the forma- 
tion of the dukedom (1534), determined the creation, in 
1535, of the Audiencia of Panama, or Tierra Firme, 
which was organized, in 1538, by segregating those 
territories from the Government of the Island of Es- 
panola and all others discovered toward the south, to 
which it was impossible for said government to give 
further attention. The Audiencia of Panama was then 
the only one in existence for the government of the 
American continent, from the line marking the end of 
Mexico 's territory down to the Strait of Magellan. 

By this Veragua depended at first upon the Govern- 
ment of Tierra Firme, as the Royal cedula of 1537 
declared. 

But when that vast government was divided by the 
so-called ''New Laws" of 1542, by the creation of the 
Viceroyalty of Peru and the Audiencia of the Confines 
(which was established in 1543 and afterwards called 



81 

the Audiencia of Gruatemala), Costa Rica formed a 
part of that audiencia, never to be separated therefrom 
through all the vicissitudes this audiencia underwent 
while dependent upon the Viceroyalty of Mexico, 
whereas Tierra Firme was made subordinate to the 
Viceroyalty of Peru by the Royal cedula of 1550, under 
which it remained permanently after various altera- 
tions. 

It cannot be successfully maintained that the Ve- 
ragua which was called Cartage or Costa Rica passed, 
in 1550, with Tierra Firme to Peru, for it is clearh^ 
shown by the Royal cedula of incorporation that only 
Castilla del Oro was in question, and it has been shown 
that the former continued in the xVudiencia of the Con- 
fines. It is enough to remember how the latter inter- 
vened in the affairs of Costa Rica and how the King 
addressed himself to it in everything relating to the 
conquest and government which he entrusted to Ortiz, 
Cavallon, Vazquez de Coronado, Perafan de Ribera and 
Artieda. The Royal cedula of August 9, 1561 (Doc. 
No. -iS), denying the claims of the Government of 
Tierra Firme with respect to the Province of Veragua 
and that of Costa Rica, should be especially borne in 
mind. 

The Audiencia of the Confines disappeared in 1563, 
having been transformed into another, called the Au- 
diencia of Panama, as result of the transfer to that 
city of the capital of the former. And in that Audi- 
encia of Panama (which, however, must not be con- 
fused with the first of that name), Costa Rica con- 
tinued, with other provinces that had pertained to the 
Audiencia of the Confines, from which Guatemala had 
been segregated and to which Tierra Firme was incor- 
porated. The Audiencia of Guatemala having been 



82 

re-established in 1568, and that of Panama having been 
dismembered, Costa Rica followed the former and 
Tierra Firme remained in the latter. 

{h) From Its Re-estahlishment {1568) Down to the 
Promulgation of the Recopilacion {1680). 

The Audiencia of Panama objected to being deprived 
of the jurisdiction which had been segregated from it, 
and it became necessary for the King, by the Royal 
cedula of August 12, 1571 (Doc. No. 59), to order that 
it should not continue any longer to act in matters per- 
taining to that of Guatemala and to declare, by the 
Royal cedula of July 17, 1572 (Doc. No. 61), that the 
affairs of Nicaragua and Guatemala belonged to the 
latter. 

The Audiencia of Guatemala continued, in fact, to 
occupy itself with the government of and the admin- 
istration of justice in Costa Rica, as it had done before 
its suppression. Thus we see it calling to account 
Perafan de Ribera, Diego de Artieda, Fernando de la 
Cueva, Ocon y Trillo and other governors; we see it 
taking measures concerning allotments of Indians and 
exemptions from tribute, and intervening in all the 
other affairs of that province, by virtue of its inherent 
powers, or by order of the King, until 1680, when the 
Recopilacion was published, to say nothing of those 
acts which are set forth with their dates in the defense 
of Costa Rica. 

The audiencia, however, had to refrain from ap- 
pointing the Governors of Costa Rica, because the King 
reserved their appointment to himself, according to 
the Royal cedula of May 26, 1572 (Doc. No. 60), which 
he addressed that body; but it did name those officers 



83 

ad interim, pending permanent appointments by the 
King, in the case of Alonso de Anguciana (1573), Ve- 
lazquez Ramiro (1590), Gonzalo de Palma (1592), Gon- 
zalo Vazquez de Coronado (1600), Arias Maldonado 
(1662), etc. 

And, finally, evidence that Costa Rica depended upon 
the Audiencia of Guatemala, is found in the protracted 
proceedings arising out of the plan to aggregate it to 
the Audiencia of Panama. On September 25th, 1609 
(Doc. No. 75), Philip III asked the Audiencia of Guate- 
mala whether it would be desirable to place the Prov- 
ince of Costa Rica, "which is under the jurisdiction of 
your Audiencia," in the district of that of Panama; 
Philip IV informs the President of tlie latter, on Octo- 
ber 24, 1623, that he is investigating the matter, and in 
1627 and 1G28 (Doc. Nos. 235 and 236), he calls upon 
the Governor of Costa Rica for reports ; and Charles II, 
after having asked the Audiencia of Guatemala for 
further reports concerning the aggregation of the 
Province of Costa Rica to that of Panama, declares in 
Law 1, title 2, book V, of the Recopilacion, that the 
Government and Captaincy-General of Costa Rica shall 
form part of the Audiencia of Guatemala, dependent 
upon the Viceroyalty of New Spain (Mexico). 

The foregoing clearly demonstrates that, after ma- 
ture reflection and in harmony with its history, the 
Province of Costa Rica was expressly recognized by 
the Recopilacion de Indias as such province and a 
dependency of the Audiencia of Guatemala. 



IV. 



INTERPRETATION OF LAW 9, TITLE 1, BOOK 
V, DECLARING THAT THE WHOLE OF THE 
PROVINCE OF VERAGUA IS UNDER THE GOV- 
ERNMENT OF TIERRA FIRME. 

1. It is Not Possible to Refer to the Verag^ua of 1537, 
as Constituting the Whole of Veragua. 

Law 9, title 1, book V, of the Recopilacion de Indias 
(Doc. No. 135), begins by citing as its precedent the 
Eoyal cedula issued by the Emperor at Valladohd on 
March 2, 1537, which has for a caption: "Let the 
Province of Veragua Belong to the Government of 
Tierra Firme;" and its text contains the single order: 
*'Let the whole Province of Veragua belong to the gov- 
ernment of Tierra Firme." 

This word ** whole," which does not figure in the 
heading, and the above reference to the Eoyal cedula 
of 1537, constitute the principarbasis of Colombia's 
argument in her effort to maintain that the Province 
of Veragua to which the Recopilacion de Indias refers 
as subordinated to the Audiencia of Panama of the 
Viceroyalty of Peru, comprised the whole of what was 
Veragua in the purview of that Royal cedula. In her 
argument Colombia seeks to make the law say, by its 
citation and its text, that it restores things to the state 
in which they were found in 1537 and therefore nulli- 
fies everything that was done subsequently to that date. 

We begin by making it clear that these citations of 
cedulas and pragmdticas which are seen at the heads or 
on the margins of the laws in the comi)ilations, only 
serve to indicate the origin or antecedents of the textj 



85 

they form no part of the text. They have, therefore, 
no virtue as precepts unless they are reproduced in 
the text in which case their authority is revived. Still, 
they always supply the historical explanation of the 
respective laws, although not in every case as their 
commentaries, since they may be complete negations 
thereof. 

The Royal cedula of Valladolid, of March 2, 1537, is 
cited once at the beginning of this Law 9, title 1, book 
V, relative to Veragua, and again at the beginning of 
Law 4, title 15, book II (Doc. No. 106), which deals 
with the Audiencia of Panama. Are there two cedulas 
of the same date, or only one? If two, then the one 
that is cited with reference to Veragua, could not be 
the one which Colombia defends with so much earnest- 
ness ; if there is but one, then, since it does not speak 
of the Audiencia of Panama, the citation of Law 4 
can be understood in no other sense than as the author- 
ity for the formation of that audiencia. 

It is impossible, therefore, to assert successfully that 
by the mere fact of the citation of the Royal cedula of 
March 2, 1537, by Law 9 it could re-enact that cedula 
and abrogate everything that had been commanded 
subsequently thereto ; that law cited the cedula as the 
organic act of the Province of Veragua, just as another 
law cited it as a precedent of the Audiencia of Panama. 

Let it be observed, furthermore, that that invocation 
of this Royal cedula by Colombia for the purpose of 
showing that by virtue thereof the whole of Veragu.i 
became a single province and belonged to the Govern- 
ment of Tierra Firme, is from every point of view 
contraproducentem. First, because this very Royal 
cedula establishes the division of Veragua into two 
parts, confirming the creation of the Dukedom of Ve- 



86 

ragua with its square of twenty-five leagues, and com- 
manding that such lands as might be left after taking 
out these twenty-five leagues, should be subject to the 
Government of Tierra Firme, called Castilla del Oro. 
Second, because the dukedom granted to Don Luis 
Columbus by the Eoyal cedula of January 19, 1537, 
was expressly left subject to the jurisdiction of the 
Audiencia of the Island of Espaiiola. Therefore, when 
the Province of Veragua was re-established in 1537, 
the re-establishment did not involve the entirety of that 
province but only that part which was left after segre- 
gating the square of twenty-five leagues of the duke- 
dom. 

In order to defend the integrity of that Province of 
Veragua which she has dreamed of as belonging to tho 
Government of Tierra Firme, from Castilla del Ore 
as far as Cape Gracias a Dios, Colombia must begin 
by getting rid of the Royal cedula of 1537, and then 
rely upon the dispositions which have abrogated it. 

We have already seen how the primitive Veragua 
was broken up, by virtue of its historical evolution 
and the acts of the Sovereign, into three provinces, 
each distinct from and independent of the other; the 
Province of Veragua, properly so-called, and the only 
one that kept this name, that of Costa Rica, and that 
which began by calling itself Teguzgalpa. We have 
seen, also, how from the birth of the Audiencia of the 
Confines, or Guatemala, down to the time of the Re 
copilacion, inclusive, the Province of Costa Rica be- 
longed to it and to the Viceroyalty of New Spain, and 
remained separated from the Government of Tierra 
Firme which depended upon the Viceroyalty of Peru. 
We deem it unnecessary to insist further upon these 



87 

propositions after the extended demonstration which 
we have already made of them ; it will be sufficient to 
add this demonstration to the reasons stated, in order 
to establish conclusively the fact that Law 9, title 15, 
book V, cannot be interpreted in the sense of referring 
to the Veragua of 1537 as embracing the whole of the 
Province of Veragua. 

2. Nor is the Hypothesis Admissible that Veragua is 
a Major and Costa Rica a Minor Province. 

Colombia defends herself in retreat, by referring the 
totality of the Province of Veragua as of the year 1560 
and seeking to construct the duality of the Govern- 
ments of Veragua and Costa Rica, mentioned by the 
Recopilacion, by distinguishing them as major and 
minor provinces. 

According to the opinion prepared by one of the 
eminent counsel, the Royal cedula of July 18, 1560 
(Doc, No. 39), reveals the fact that out of ancient 
Veragua there had been formed two provinces, one a 
large one which kept the tradition and the name of 
Veragua, and the other a small one which was subject 
to the jurisdiction of Nicaragua, this small one being 
the province called Costa Rica. 

In that very Royal cedula, the King specifically de- 
clares the division of Veragua into two parts; that 
entrusted to Francisco Vazquez, with which the Prov- 
ince of Veragua was constituted and of which he was 
afterwards appointed Governor and Captain-General; 
and the part confided by commission to Ortiz de El- 
gueta, which his successors conquered and governed 
under the name of Costa Rica and which reached as 
far as the boundaries of the other. 



Not because it was indicated that the conquest would 
be initiated on the side next to Nicoya, or because Ortiz 
was Alcalde mayor of the latter or because of the fact 
that governors appointed for the former were made 
also governors of Nicaragua in order to facilitate the 
conquest, can it be maintained that Costa Rica was 
reduced to the ' ' little scrap ' ' of which the Memoranda 
of Colombia speak so disparagingly, or that Costa JRica 
can be confused with Nicoya or Nicaragua. In our 
opinion we have made sufficiently clear the manner in 
which the Province of Costa Rica was formed, from 
the commission given to Ortiz de Elgueta and trans- 
mitted to Cavallon, and it would seem to be unneces- 
sary to return to that historical aspect. 

On the other hand, the idea of a distinction into 
major and minor provinces is not applicable, for ac- 
cording to Law 1, title 1, book V, of the Recopilacion 
de Indias (Doc. No. 131), the designation of major is 
only given to the districts of the audiencias, within 
which were found the minor ones, such as the govern- 
ments, alcaldias may ores, etc., and Veragua never was 
an audiencia, neither was Costa Rica. 

But hoth were provinces, in the category of goj'ern- 
ments and captaincies-general, as they are expressly 
considered by Law 1, title 2, book V, of the Recopila ■ 
cion. And as the salaries are in proportion to the 
rank of the offices, and the latter with the character 
or importance of the provinces, let us look into the 
assignment of salaries made by this same law: Gov- 
ernor and Captain-General of the Province of Costa 
Rica, 2,000 ducats; Governor and Captain-General of 
the Province of Veragua, 1,000 pesos ensayados; Gov- 
ernor of Nicaragua, 1,000 ducats, and Alcalde mayor 
of Nicoya, 200 ducats. 



89 

It will be noted that the salary of 2,000 ducats as- 
signed to the Governor and Captain-Greneral of Costa 
Rica is the same that was provided for that office by 
the Royal cedulas of 1573 and 1574, which constituted 
the capitulacion and appointment of Diego de Arti- 
eda — a new fact, by the way, in favor of its efficacy. And 
if this salary be compared with the others mentioned, 
how can it be imagined that the Government and Cap- 
taincy-General of Costa Rica was of less importance 
than that of Veragua, or that it could have been made 
dependent upon, or, subordinated, to the mere Gov- 
ernment of Nicaragua or the Alcaldia mayor of Ni- 
coya? 

Nor does the whole of the Province of Veragnia to 
which Law 9 alludes, constitute the whole of this sup- 
posed major province of 1560, with the exception of 
the '* little scrap" {le petit lambeau) adhering to 
Nicoya or Nicaragua. 

3. Explanation of This Law, by Making it Refer to 
the Province Emanating From the Dukedom. 

In our opinion Law 9, title 1, book V, can only be 
interpreted by construing it as referring to the Prov- 
ince of Veragua into which the dukedom was converted, 
because this interpretation is based on fact, on history, 
on the reason for its being included in the Recopilacion 
de Indias and on its harmony with other laws of the 
same. 

The only Province of Veragua in existence when the 
Recopilacion was published, in 1680, was the one defi- 
nitively constituted in 1560, proceeding from the sup- 
pressed ducal seignory, and differing from the re- 
mainder of the ancient Royal Veragua. This was 



90 

called Costa Rica in the time of Sanchez de Badajoz 
(1539) ; Cartago and Costa Eica in the time of Diego 
Gutierrez (1540) ; Cartago or New Cartago and Costa 
Rica in that of Cavallon (1561), and Costa Rica only 
upon being constituted as a province on the occasion 
of the appointment of Governor of Vazquez de Coro 
nado (1565) ; the province retained that name after 
the separation therefrom of Teguzgalpa when the gov- 
ernment of Diego de Artieda was created (1573), and 
until it ceased to be a Spanish province ; and it is not 
to be imagined that, upon the publication of the Recopi- 
lacion de Indias, its laws, could refer to any Provinces 
of Veragua and Costa Rica other than those that then 
existed, abandoning reality and going back over the 
course of history in order to confuse them with the 
primitive Veragua of the coast discovered by Colum- 
bus, or of the capitulaciones with Nicuesa (1508), or 
with Felipe Gutierrez (1534). 

Colombia places a limit on this historical retrogres- 
sion at March 2, 1537, and bases her arguments solely 
upon the citation made in Law 9, giving to those cita- 
tions which only indicate origins, a value they do not 
possess ; but without noting that it was impossible to 
revive the totality of the old Veragua by the enact- 
ment of the Royal cedula of that date, since this Royal 
cedula sanctioned its division into two parts: Royal 
Veragua and Ducal Veragua. 

It is just because this dicision was sanctioned in the 
Royal cedula of March 2, 1537, that we can explain its 
citation in Law 9, understanding that it mentions that 
division as a historico-legal precedent of the Province 
of Veragua, derived from the dukedom, wliich was 
treated in the text, just as it also cited that cedula as 



91 

an antecedent to the formation of the Audiencia of 
Panama or Tierra Firme. 

Let this citation be disregarded, as being a mere 
historical reference, and what remains to Colombia 
wherewith to maintain that the Recopilacion de Indias 
abrogated everything subsequent to said Eoyal cedula ? 
The text of the law, far from enacting the Royal cedula, 
differs therefrom as regards the argiiment of Colom- 
bia, since it speaks of totality and not of division, as 
does that cedula. 

Why was such a text written into the Recopilacion 
de Indias f For the purpose apparent in other similar 
cases — that of explaining the territorial division and 
settling the doubts that might be raised concerning the 
respective jurisdictions. 

Title 1, book V, which treats of "the districts, divi- 
sion and aggregation of the Governments,'' begins, in 
its Law 1, by laying down the principle that governors 
shall preserve the limits of their districts, continues 
with the explanation of the dependency in which cer- 
tain audiencias are found in respect to the two vice- 
royalties, and then defines the dependency of certain 
governments with respect to the audiencias. 

Because of the fact that the Audiencia of Panama 
went through so many alterations, and was contiguous 
with the Viceroyalty of New Spain and with other au- 
diencias of the Viceroyalty of Peru, it was the one to 
which the most attention was given, particularly with 
reference to its Province of Tierra Firme. 

Law 2 says (Doc. No. 132) : ''The Province of Tierra 
Firme belongs to the Government of Peru." And to 
the end that there might be no doubt remaining, by 
reason of its having figured as a part of the Audiencia 
of the Confines, Law 7 (Doc. No. 133) reproduces the 



92 

Royal cedula of 1550, saying that ''* * * the Prov- 
ince of Tierra Firme, called Castilla del Oro, shall 
belong to the Provinces of Pei*u and not to those of 
New Spain." 

Law 8 (Doc. No. 134) thereupon indicates the eastern 
limit on the north with the Audiencia of Santa Fe, to 
which the Province of Cartagena belonged, and de- 
clared that the back portion of the Gulf of Uraba be- 
longs to Tierra Firme. And finally, in order to fix 
the western limit and banish all doubt of the fact, that, 
according to Law 7, the Viceroyalty of Peru and Au- 
diencia of Panama should terminate with Castilla del 
Oro, Law 9 provides -. ' ' * * * Let the whole Prov- 
ince of Veragua belong to the Government of Tierra 
Firme. ' ' 

This Law, then, forms a harmonious whole with these 
other laws of th« same title, and responds to the same 
idea that they do. And it is in harmony also with 
Law 1 of title 2 (Doc. No. 136), which follows there- 
after, and includes the Province of Costa Rica in the 
Audiencia of Guatemala and Viceroyalty of New Spain, 
in conformity with the resolution taken by Charles H, 
when the Recopilacion was published, after the long 
proceedings which arose out of the plan to include that 
province in the Audiencia of Panama. 

There cannot, then, be the slightest doubt that the 
Province of Veragua, to which Law 9 referred, was 
that which arose out of the dukedom, and this is even 
confiimed by the same citation of the Royal cedula of 
1537, relative to the dukedom of which it was formed. 

But if this is the simple and clear explanation of 
Ijaw 9, the heading of which says that the government 
of the Province of Veragua belongs to Tierra Firme, 



93 

how is the placing of the word ''whole" at the begin- 
ning of its text to be explained? 

It may be redundancy, which is frequently made use 
of to give more force to expression and to leave a 
phrase more complete ; but we think there were special 
reasons for saying "the whole Province of Veragua." 

The Law could not say ''the whole Dukedom of 
Veragua," since it had been suppressed; neither could 
it refer to the boundaries of the latter, because they 
had not been actually traced ; nor were they in fact the 
imaginary boundaries mathematically fixed by merid- 
ians and parallels. As to the contiguous provinces, they 
had been altered in one way or another, and there were 
^also intermediate spaces which had been the object of 
disputes, and others which at any moment might have 
given rise to controversy. It is enough to remember that 
from the meridian of the Belen river, the eastern boun- 
dary of the dukedom, as far as Castilla del Oro, which 
was fixed as the limit of the government of Felipe Gu- 
tierrez (1534), there were territories which were not in- 
cluded in the ducal demarcation ; that the demarcation 
of Ortiz de Elgueta, Cavallon and Vazquez de Coronado 
could lead to the belief that the boundaries of their 
government reached as far as the line between Nombre 
de Dios and Panama (1559-1565) ; and that the demar- 
cation of Artieda (1573) fixed the limits of Costa Jlica 
"as far as the Province of Veragua," making it com- 
prise the Bocas del Drago on the north and the Valleys 
of Chiriqui on the south. 

So that even if the Province of Veragua was formed 
with the territory of the Dukedom of Veragua, it did 
not coincide with its mathematical limits and it con- 
tained parts which were not within their geometrical 



94 

configuration. And it was in our judgment to avoid 
doubt about the former dukedom, as well as to confirm 
the solutions to doubts which had been raised regard- 
ing the existence of the province, that the law said: 
''The whole of the Province of Veragua * * *," 
which was equivalent to saying, ''all that may be or is 
the Province of Veragua," thus sanctioning its exist- 
ence with, the whole extension that it then had. 



4. Case of Supposed Contradiction of This Law With 

Others. 

The result of the foregoing explanation is that Law 
9, title 1, book V, is in perfect harmony with the other 
laws of the Recopilacion de Indias; but if it be still 
insisted that this law resuscitated the ancient Veragua 
by re-enacting the Royal cedula of 1537 and abrogating 
all provisions subsequent thereto, under which suppo- 
sition that law would be found to be in contradiction 
to others of the laws mentioned, we would suggest the 
following to show how this contradiction might be 
settled. 

It is not unusual in the compilations to find laws which 
are contradictory, because they have been collected 
from different periods without due attention always to 
comparing them, or because of the lack of antecedents 
essential to their proper interpretation. So that, when 
it is sought to settle conflicts between laws or parts of 
a law in a certain compilation, which were originally 
enacted at different dates, failing any other solution, 
it may be taken as a rule that the earlier law shall be 
considered as amended or abrogated by the later one, 
as the case may be. 



95 

Following this criterion, and supposing that Law 9, 
title 1, book V, could have resuscitated the Government 
of Tierra Firme of 1537 and included therein all Ve- 
ragua, ducal and not ducal, that law must be considered 
as abrogated by Law 7 of the same title; this is the 
Royal cedula of 1550, according to which only Castilla 
del Oro wais incorporated into the Viceroyalty of Peru, 
and all of Veragua was left in the Audiencia of the 
Confines and Viceroyalty of New Spain. And although 
the effort is made to negative the existence of the 
Province of Costa Rica by pointing out the omission 
of its name in Law 6, title 15 of book II (Doc. No. 107), 
and by saying that that law was enacted by Philip IV, 
the reply is instantly forthcoming that the law was 
modified by his successor, Carlos II, who decreed Law 
1, title 2, book V (Doc. No. 136), which included the 
Government and Captaincy-General of the Province of 
Costa Rica in the Audiencia of Guatemala and Vice- 
royalty of New Spain. 

V. 

VALIDITY OF THE ROYAL CEDULAS WHICH 
ARE DEMARCATORY ACCORDING TO THE 
RECOPILACION. 

1. Principles Established by the Recopilacion in Re- 
gard to the Validity of the Royal Cedulas Prior and 
Subsequent Thereto. 

Counsel for Colombia assume that the rights of 
Costa Rica are supported only by Royal cedulas, and 
then deny that those cedulas possess any legal force, 
on the ground that the Recopilacion de Indias rendered 
them wholly innocuous. 



% 

But it is not a fact, as we have already indicated in 
speaking of the Recopilacion in general, that the latter 
abrogated all the prior dispositions. The Royal cedula 
of May 18, 1680, which authorized the publication of 
that code and prefaced it, says : ' ' * * * leaving in 
force and effect the Cedulas and Ordinances given to 
our Royal Audiencias, in so far as they are not con- 
trary to the Laws herein. ' ' 

Law 1, title 1, book 11 (Doc. No. 92), provides that 
whenever the necessity may arise for making new laws 
reports shall be made to the Council of the Lidies and 
it declares that the ordinances enacted for cities and 
communities, as well as those made for the welfare of 
the Indians and for good administration, shall continue 
without alteration, provided they be not contrary to 
the laws. And Law 2, of the same title and book (Doc. 
No. 93), directs that in matters not covered by the 
laws of the Recopilacion *'or by Cedulas, Provisiones 
or Ordinances issued for the Indies and not revoked, 
or by those which are promulgated by our order, ' ' the 
laws of Castile shall be enforced. 

By Law 2, title 2, book II (Doc. No. 94), the Council 
of the Indies is given supreme jurisdiction of all the 
western Indies, and empowered it to ''make, with our 
advice, the general and special Laws, Pragmatics, 
Ordinances and Provisiones * * * ; " and the Coun- 
cil is further instructed that those "* * * provi- 
sions and commands shall be in everything and by 
everybody complied with and obeyed in all places." 

In this way the Recopilacion de Indias laid down 
these principles : First, that Royal cedulas which are 
not in contradiction to its laws shall continue in force ; 
and second, that all Royal cedulas thereafter issued 



97 

should attain to the dignity of Laws, if enacted by the 
Council of the Indies, by and with the advice of the 
King. 

2. Legality of Territorial Division and the Bound- 
aries of Districts. 

This is perfectly well settled by two laws decreed 
by the very authors of the Recopilacion de Indias. 

Law 1, title 15, book II, of Philip IV (Doc. No. 105), 
after explaining how all the discoveries of the Indies 

were divided into twelve audiencias, the districts of 
which were subdivided into governments, corregimien- 
tos and alcaldias mayores, which were subordinate to 
those audiencias, and ''* * * all to our Supreme 
Council of the Indies, which represents our Royal Per 
son," says: *** * * We establish and command, 
that now and until We otherwise order, the said twelve 
Audiencias shall be retained, and that within the dis- 
trict of each one the Governments, Corregimientos and 
Alcaldias Mayores which they now have shall be pre 
served, and that no change be made therein, without 
our express order or that of our said Council. ' ' Then 
follow the laws making the demarcation of audiencias. 

Law 1, title 15, book II, of Philip IV (Doc. No. 105), 
after setting forth the advantages of the differentia- 
tion of the districts and territories, says: ''We order 
and command the Viceroys, Audiencias, Governors, 
Corregidores and Alcaldes mayores to keep and ob- 
serve the limits of their jurisdictions^ as they may be 
fixed by the Laivs of this book, the Titles of their of- 
fices, the Provisiones of the superior Government of 
the provinces, or by use and custom legitimately intro- 
duced." Then follow the laws designating the dis- 



98 

tricts of various governments, among which are found 
those of the Audiencia of Panama. 

So, then, the Recopilacion de Indias recognized the 
existing legalit}'^ of the demarcations at the moment it 
was published; and it not only recognized it, but it 
confirmed it, in so far as it was not in contradiction 
with its laws, and even prohibited any change therein 
without express order of the King or of the Council of 
the Indies. 

These provisions relating to territorial division were 
in accord with the general provisions concerning the 
value of Royal cedulas prior and subsequent to the 
Recopilacion, and they all sanction the validity of the 
Royal cedulas that established boundaries. Enact- 
ments prior to the Recopilacion, continued in force not 
only by reason of being Royal cedulas which did not 
contradict that code, but because they established the 
status quo of territorial division; those that were is- 
sued afterwards were required to be by the express 
order of the King or the Council of the Indies, in order 
to modify the demarcations existing in 1680. 

The only condition that qualified the efficacy of the 
Royal cedulas demarcatory of boundaries, and deter- 
miniug the legal status of 1680, was that they should 
not be in contradiction to what was provided by th;^ 
laws contained in the Recopilacion. But as these laws 
only indicated in a general way the boundaries of the 
audiencias and solved various doubts concerning thj 
inclusion of certain provinces therein, the Royal de 
marcatory cedulas which specified those boundaries 
and indicated those of the governments — without being 
opposed to the general demarcation — beside being 
valid, had the importance of being complementary to 
the Recopilacion itself. 



99 

3. Special Consideration of the Capitulaciones. 

The Royal cednlas approving the capitulaciones for 
the discovery and settlement of territories, being Royal 
cedillas which were not opposed to the laws of the 
Recopilacion, and having produced the legal status of 
the demarcations, unite the conditions requisite to their 
validity and efficacy in the matter of territorial divi- 
sion; they disregard the personal aspect of those 
capitulaciones and consider them in their character as 
demarcatory orders. But Counsel for Colombia only 
see in them a contract, of no consequence in public 
law; we are therefore impelled to a special considera- 
tion of the subject. 

{a) Juridical Character of the Capitulaciones. 

Counsel for Colombia say: 

''The jurisdictional demarcations, the deter 
mination of territories submitted to Viceroys, 
Governors or Audiencias, were never made by 
means of capitulaciones or contracts between 
the State and private individuals, but by Royal 
cedillas, Royal orders, acts of Public Authority 
and of the sovereignty of a unilateral character, 
such as the exercise of dominion over the terri- 
tory of the Nation." 

And, generalizing the question, tbey add : 

"It is a principle of Public Law, inherent in 
the very essence of the sovereignty of the State, 
that the territorial division shall be a matte/ 
submitted directly to the decision of the sov 
ereign. When the sovereignty is exercised over 
the national territorj^^, it is manifested by acts 



100 

of Public Authority, in conformity with the con- 
stitution of each State * * *, but to no one 
acquainted with the law would it occur that tho 
concessions of the State to its subjects for the 
exploitation of territories or regions, their cul 
tivation or their administration under this or 
that form, implied changes in the political and 
civil jurisdiction." 

In the first place, it may be said, in reply to these 
assertions, that a capitidacion presents two aspects: 
One of personal interest, that of the individual in 
whose favor it was granted, and the other one of 
public interest, that of the discovery, the colonization 
and administration of the territory designated — a 
duality in aspect which also characterized the titles 
of appoiiitmeiit to governorships. The personal aspect 
disappeared \^dth the individual or the one who held 
the granted right ; the public aspect persisted, the ter- 
ritorial entity being left with the boundaries imposed 
upon the contracting party or governor, as long as 
these limits were not changed by any subsequent pro 
vision. 

Considering the capitulacion as a compact, it was in 
effect a bilateral act, which produced reciprocal obliga- 
tions between an individual and the Crown. But prior 
to the contract and above its capacity as a contract, 
it had the character of a unilateral act of sovereignty, 
since by making use of it the Monarch provided this 
mode of discovering, colonizing and administering a 
certain territory that he marked out, approved the 
capitulacion by Royal cedula, and when its term ended, 
he appointed within that demarcation another person 
to continue its administration. Thus were formed the 
different territorial demarcations which, under the 



101 

names of governments, corregimientos and alcaldias, 
went to fill out or complete the general demarcations 
of the audiencias, under a regime of territorial division 
established by the Sovereign. The boundaries pre- 
scribed in the capitulaciones were the boundaries of 
governments, and the boundaries of the governments 
were respected and confirmed by the Recopilacion. 

Even considering the capitulaciones as contracts, 
they can never be compared with those of private law ; 
they must come under the category of contracts for 
public works and services or of administrative con- 
cessions. It is by the use of its sovereignty, and in no 
sense by abdicating it, that the State undertakes in 
this manner to perform services and works or to utilize 
the public domain ; and in doing so, it imposes as con- 
ditions those which belong to the nature of the con- 
cession, work or service. The boundaries of the land 
designated to the contracting party or the concession- 
aire subsist for the State as long as it does not modify 
them. Who doubts, for example, when a railway line 
granted to a corporation reverts to the State, that it 
will have the same delimitation that it had previously? 

Neither can there be any successful comparison be- 
tween capitulaciones and such administrative acts; 
these taken altogether constitute a system of colonis- 
ation and government which Spain employed in her ex- 
ploration, settlement, pacification and government of 
those vast territories — a system responding to needs 
that are not felt in countries completely formed to 
which a law of territorial division is given. 

The Recopilacion de Indias recognized and confirmed 
the result of this system which had been employed, that 
is to say, the status quo of the demarcations that had 



102 

been made at the time it was published ; and far from 
disregarding the capitulaciones it takes them up es- 
pecially in its book TV, and gives to them the charac- 
teristics of a most singular institution of Public Law, 
based on the sovereignty. 

(b) The Capitulaciones in the Light of Book IV of the 
Recopilacion. 

Title 1, of book IV treats of "the discoveries" in 
general, and lays down the principle that no discovery 
or settlement may be made at the expense of the King, 
unless the latter expressly authorizes it (Law 17 ; Doc. 
No. 115). 

It provides how the discoveries are to be granted; 
no new grants were to be made unless the prior ones 
should have been carried out and unless the King 
should be consulted; those to whom the right to make 
such discoveries had been granted were to qualify as 
men in whom reliance could be placed; and the con- 
tracting parties were to be required to observe the 
laws and instructions, to give an account of their work 
and to keep within the boundaries indicated; in the 
event of any doubt or question concerning the bounda- 
ries established by the capitulaciones they were to be 
determined by the respective audiencia, and in case 
two audiencias should be interested in the same matter 
and fail to agree, then the matter was to be determined 
by the Council of the Indies (Laws 1, 2, 4, 11 and 14; 
Doc. Nos. 108, 109, 110, 113 and 114). 

It directs that in all capitulaciones the word "con 
quest" should be omitted and that ''pacification and 
settlement" be used instead (Law 6; Doc. No. Ill), 



103 

and authorizes the explorers to give names to the terri- 
tories, rivers and mountains they might discover and 
to the cities they might establish (Law 8; Doc. No. 
112). 

Title 2 concerns itself with discoveries by sea; it 
requires special permission to undertake them (Law 1 ; 
Doc. No. 117) ; it imposes the condition of providing 
at least two ships (Law 2; Doc. No. 118) ; and cautions 
the explorer that in making a landing upon any terri- 
tory he must take possession in the name of the King 
(Lawll;Doc. No. 119). 

Title 3 treats of discoveries by land; it directs that 
an inquest be taken before making the capitulaciones 
(Law 1; Doc. l^o. 120) and fixes the powers of those 
who enter into them. Among these are the power to 
appoint judges in the territory delimited, which in- 
cludes the right to dismiss therefrom those who were 
already there, the power to divide this territory into 
districts, to appoint alcaldes therein, to make ordi- 
nances for its proper administration, etc. (Laws 13, 
16 and 17 ; Doc. Nos. 123, 125 and 126). 

Both in this title, and in the three that follow, whicli 
speak of the pacifications of the settlements, and of 
the explorers, pacificators and settlers, various rights 
are stated as pertaining to the holders of capitula- 
ciones, such as the erection of forts, the establishment 
of cities, the exercise of jurisdiction during their lives 
and its transmission to their heirs, the holding of the 
title of alcalde mayor, if their territory borders with 
that of viceroys or audiencias, and even that of Mar- 
quis if it were an Adelantado. 

The Crown imposed obligations and restrictions 
upon them in connection with the settlement and paci- 



104 

fication of the country; Law 8, title 4 (Doc. No. 129), 
for example, prohibited the discoverers from making 
war on the Indians unless absolutely necessary, or 
doing any other harm or injury, or taking anything 
from them without payment therefor. 

All of this shows very clearly the very special nature 
of the capitulaciones, which were a real institution of 
public law, under the shelter of which were formed 
the provinces and their districts. The boundaries fixed 
by the Council of the Indies in the capitulaciones grant- 
ed by the King and placed under the protection of the 
audiencias, were also, therefore, boundaries of pub- 
lic law. 

Law 7, title 7 (Doc. No. 130), provides that ''* * * 
the district and territory which may be granted by 
capitulacion for settlement," shall be allotted by first 
holding out the town plots, commons and pasture lands 
for the public, and then separating the remainder into 
four parts, one for the founder and the other three 
parts for equal division among the settlers. The de- 
marcation thus made, it created rights in favor of the 
settlement which were not extinguished with the dis- 
appearance of the founder. 

And, finally, the Recopilacion declared the capitula- 
ciones to be in force provided they were not opposed 
to it (Law 18, title 1, book IV; Doc. No. 116), as 
follows : 

' ' We order and command that all discoveries 
and pacifications, and all capitulaciones and writ- 
ings which may have been made concerning 
them, are to be suspended if they are or may be 
in contravention of the Laws of this book; and 
that in all which may be made these Laws shall 
be observed and executed, without exceeding in 
whole or in part." 



105 

(c) Capitulaciones Originating the Provinces of Ve- 
ragua and Costa Rica. 

By virtue of such capitulaciones the Provinces of 
Veragua and Costa Rica began to take legal form 
according to the general system of that period. 

The Dukedom of Veragua had its birth, in 1536, 
under the arbitral settlement of a suit growing out of 
the capitulaciones made with Christopher Columbus in 
1492. When the dukedom was suppressed by agree- 
ment of Don Luis Columbus with the Council of the 
Indies, in 1556, its territory was granted by capitula 
cion to Francisco Vazquez, who was thereunto author- 
ized by the Royal cedula of 1557 ; and Philip II erected 
it into a province when he appointed this same Fran- 
cisco Vazquez as Grovernor and Captain-General by 
Royal cedula of August 20, 1560. 

Ancient Veragua having been divided into two parts 
by the Royal cedula of March 2, 1537, in consequence 
of the creation of the dukedom, the King disposed of 
the remaining part by giving it to Diego Gutierrez in 
the capitulacion and Royal cedula of November 29, 
1540; that instrument fixed as the eastern boundary 
the meridian that passed along the end of the twenty- 
five leagues of the dukedom, starting from the meridian 
of the Belen river. If Colombia denies this Royal 
cedula and goes back to that of 1537, she must recog- 
nize that the remaining part to which this latter re- 
ferred was the demarcation given by capitulacion to 
Felipe Gutierrez in 1534 and then existing; according 
to this demarcation the territory that later was to 
become Costa Rica, reached as far as the limits of Cas- 
tilla del Oro, which had been given to Pedrarias Davila 



106 

and Pedro de los Rios, subject to the rights of Co 
lumbus. 

The personal rights of Diego Gutierrez in the capit- 
ulacion of 1540 having been extinguished, the explora- 
tion and settlement of Costa Rica was made by order 
of the King without capitulaciones , but under the com- 
mission given to Ortiz de Elgueta ; and the province of 
that name was constituted in the form of a government 
and captaincy-general when Vazquez de Coronado was 
appointed to fill those offices bi 1565. The capitulacion 
of Artieda, of December 1, 1573, separated the northern 
part, with which the Province of Teguzgalpa was 
formed later on by the capitidacion of Diego Lopez of 
1576, and it left the Province of Costa Rica definitively 
bounded. 

It is important to note that the capitulaciones of 
Diego Gutierrez, of 1540, and of Artieda, of 1573, were 
approved directly by the King in Royal cedulas and by 
accord with the Council of the Indies, thus combining 
all the requisites which the Recopilacion de Indias de- 
mands for their validity and continuance in force. 

It cannot be said that these capitulaciones expired 
with the death of the persons with whom they were 
made, for the demarcations made by the King always 
remained and the boundaries fixed by them, were those 
that limited the jurisdiction of the governors who were 
afterwards appointed, those preserved by the superior 
authorities in maintaining such governors in their 
rights, and those sanctioned by use and custom — those 
in fact which the Recopilacion commands to be re- 
spected and kept, as stated in Law 1, title 1, book V 
(Doc. No. 131). 

For the reasons above stated, in all the boundary 
questions of the Spanish-American Republics, the 



107 

value of capitulaciones has been recognized as decisive 
of territorial divisions ; the extinction of the rights of 
the holders produced no effects on those divisions. 
This has been demonstrated in the controversies and 
litigations between Colombia and Venezuela, Peru and 
Boli\da, Peru and Ecuador, Chile and Argentina, Ar- 
gentina and Brazil, etc. 

In the boundary question between Honduras and 
Nicaragua, which was decided by the King of Spain in 
1906, the very same counsel who defended Colombia 
against Costa Rica not only recognized the value of 
capitulaciones, but they invoked those here cited in 
support of the rights they were then defending, as we 
have heretofore stated ; Senor Maura for instance, said, 
in defense of Nicaragua, that the Diego Gutierrez ca- 
pitulacion of 1540 defined the eastern limit of Honduras 
and that the Artieda capitulacion of 1573 clearly dis- 
tinguished Costa Eica from Nicaragua ; and Senor Sil- 
vela, in defending Honduras, asstjrted that this capitu- 
lacion with Artieda definitely fixed the limits of 
Costa Rica. 

4. Unilateral Acts of the Crown in the Unquestionable 
Exercise of Sovereignty, and Titles of the Gover- 
nors; Final Deductions. 

Although the Royal cedulas approving the capitu- 
laciones were acts of pure sovereignty, as we have 
demonstrated, it is important to remember that the 
Crown constituted the Provinces of Veragua and Costa 
Rica by unilateral acts of unquestionable sovereign 
power. 

Philip n, by himself and without contracting with 
anyone, marked out the Province of Costa Rica in the 



108 

directions given by Eoyal cedulas of December 13, 
1559, and February 23, 1560, to Ortiz de Elgueta, who 
was to explore, settle and govern it; and he trans- 
mitted this commission to the Licentiate Cavallon in 
the same terms by Royal cedula of February 28, 1561, 
in which he charged the Audiencia of the Confines that, 
if Cavallon did not accept, it should appoint a judge or 
some other person to carry it out. The boundaries 
given to Ortiz de Elgueta and to Cavallon were the 
same as those stated in the appointment of Vazquez 
de Coronado as Governor of Costa Rica by Royal 
cedula of August 7, 1565. 

Colombia will not be able to deny that these Royal 
cedulas were unilateral acts of the Crown, expressions 
of the purest sovereignty; indeed, were they preferred 
to the capitulacion of Artieda it becomes evident that 
Costa Rica could be understood as reaching as far as 
the cities of Nombre de Dios and Panama. 

The Royal cedulas in which audiencias were created 
and suppressed, in which Costa Rica was declared to 
be included in the Audiencia of the Confines, or Guate- 
mnla. and by which, through that audiencia, questions 
were determined relating to its administration — all 
these were also acts involving the unquestionable ex- 
ercise of sovereignty ; and particularly in that category 
were the cedulas making appointments of governors. 

The titles issued to governors are of very great im- 
portaiK-e in this connection, and for two reasons: as 
Royal cedulas confirmatory of the demarcations made 
in tlie capitulaciones, and as means of proof expressly 
recognized by the Recopilacion in the matter of boun- 
daries. 

Let us remember that under Law 1, title 1, book V, 
the audiencias, governors and other authorities, must 



109 

keep the boundaries of their jurisdictions, "as they 
may be fixed by Laws of this Book, the Titles of their 
offices, etc.," the Titles of the Offices taking therefore 
the first place, as matter of proof, immediately after 
the laws ; and we will now enumerate the titles of the 
offices of the Government of Costa Rica, from the time 
that the distinction was initiated in Veragua (Royal 
and Ducal), confining ourselves simply to the princi- 
pal ones and their enumeration only, since their history 
has been fully written. 

1. Title of Governor granted to Felipe Gutierrez, 
by Royal cedula of February 6, 1536 (Doc. No. 9) in 
consequence of the approval of his ca'pitulacion of 
1534; by that instrument there was placed under his 
administration the whole territory, subject to the 
rights of Columbus, as far as Castilla del Oro, the 
boundaries of which were those assigned to Pedrarias 
Davila and Pedro de los Eios. 

2. Title of Governor granted to Diego Gutierrez, 
by Royal cedula of December 16, 1530 (Doc. No. 19), 
in consequence of the approval of his Gapitulacion of 
November 29, giving him the administration of the 
Province of Cartago, from the Rio Grande west of 
Cape Camaron as far as the limit of the dukedom, 
where terminate the twenty-five leagues granted to 
Columbus, starting from the meridian of the Belen 
river. 

3. Royal cedulas of January 11, 1541 (Doc. No. 20), 
directing that these limits be respected and observed 
by all the governors of the Indies. 

4. Title of Governor granted to Juan Vazquez de 
Coronado, by Royal cedula of April 8, 1565 (Doc. No. 
52), without capitulacion, giving to him the administra- 



110 

tion of the Province and territory of Costa Rica, with 
all its jurisdiction. 

5. Royal Cedula of August 7, 1565 (Doc. No. 54), 
directed to the same Vazquez de Coronado, Governor 
and Adelantado of the Province of Costa Rica, de- 
claring that this province comprised the territory from 
Honduras and Nicaragua " * * * on the side of the 
cities of Nombre de Dios and Panama, between the 
South Sea and that of the North," in the same terms 
in ^.yhich the demarcation assigned to Ortiz de Elgueta 
was fixed. 

6. Title of Governor granted to Perafan de Ribera, 
by Royal cedula of July 19, 1566 (Doc. No. 56), with- 
out capitulacion, giving to him the administration of 
the Province of Costa Rica, * ' * * * in the matters 
which it has been customary for the Governors who 
have been up to this time in the said province to con- 
duct.'' 

7. Title of Governor and Captain-General granted 
to Diego de Artieda, by Royal cedula of February 18, 
1574 (Doc. No. 63), in conformity with that of De- 
cember 1, 1573, approving his capitulacion and giving 
to him the Government and Captaincy-General of the 
Province of Costa Rica, which it says extends from 
the Desaguadero as far as the Province of Veragua, 
including in Costa Rica the Valleys of Chiriqui on the 
south and the Bocas del Drago on the north. The 
latter denomination embraced the Bay of Almirante 
and the Lagoon of Chiriqui, in which region he was 
directed to establish a city ; this he did, giving to the 
city the name of Artieda. 

8. Roya! ci'dula of December 29, 1593 (Doc. No. 70), 
giving the government of the Province of Costa Rica, 



Ill 

with capitulacion, to Don Fernando de la Cueva. 
n* * * ^g ^^ ^gg jjgj(j jjy Diego de Artieda Chirino." 

The province having been bounded definitively by 
the Royal cedulas of 1573 and 1574, the appointments 
of governors subsequent to Artieda and Cueva were 
conferred with like jurisdiction. We have seen how 
the Audiencia of Guatemala filled those offices ad 
interim and now we will add that the Crown continued 
to exercise its rights to appoint their proprietors. 

In fact, after Cueva, the Crown did appoint, as 
Governors and Captains-General of this Province of 
Costa Rica, Juan de Ocon y Trillo, in 1603; Juan de 
Mendoza, in 1612; Alonso del Castillo, in 1618; Joan 
de Echauz, in 1622 ; Juan de Villalta, in 1629 ; Gregorio 
de Sandoval, in 1634; Juan de Chaves, in 1644; Juan 
Fernandez Salinas, in 1650 ; Andres Arias Maldonado, 
in 1655; Juan Lopez de la Flor, in 1663; Juan Fran- 
cisco Saenz, in 1673, and Miguel Gomez de Lara, on 
August 7, 1680 — ^that is, two months after the Royal 
cedula which sanctioned the Recopilacion (May 18, 
1680). 

In the titles of these appointments no boundaries 
were assigned to these Governors and Captains-Gen- 
eral of Costa Rica that were distinct from those estab- 
lished by the demarcation of Artieda. And if the 
Monarch who published the Recopilacion de hidias 
recognized in that code the existence of the Govern- 
ment and Captaincy-General of Costa Rica and di- 
rected that the boundaries stated in the Titles of the 
Governors must be respected, is the same one who 
appointed Governors and Captains-General of Costa 
Rica (Saenz and Lara), before and after sanctioning 
it, without modifying the traditional boundaries clearly 



112 

established in prior titles, counsel for Colombia show 
much temerity in disregarding not only the boundaries 
mentioned, but the very existence even of that province. 
Let us conclude, then, by affirming that the Re 
copilacion de Indias respected and confirmed the ex- 
istence of the Province of Costa Rica, with the de- 
marcation established by the Royal cedulas of De- 
cember 1, 1573, and February 18, 1574. 



113 



PART THIRD 

Costa Rica Continued in the Same Legal Status 
of Differentiation From Verague From the Recopila- 
cion Down to the Independence. 

SUMMARY. 
I. From the Recopilacion (1680) to 1803. 

1. Creation of the Viceroyalty of Santa Fe and Vi- 

cissitudes of the Audiencia of Panama, Uii 
til Its Suppression (1717 to 1751). 

2, The Province of Veragua Passed Into Depend- 

ence Upon the Viceroyalty and Audiencia of 
Santa Fe ; Costa Eica Continued Dependeni 
Upon the Audiencia of Guatemala of the 
Viceroyalty of Mexico. 

3- The Crown Continued to Appoint Governors and 
Captains-General of the Province of Costa 
Rica. 

4. Boundaries of the Viceroyalty of Santa Fe With 
Costa Rica as a Province of the Audiencia 
of Guatemala and Bordering Thereon : 

(a) Antecedents; 

(b) Description of the Kingdom of Tierra Firme 

by the Comandante general of Panama, Don 
Antonio Guill, in 1760; 

(c) Description of the Viceroyalty of Santa Fe by 

its Viceroy, the Marquis de la Vega de 
Armijo, in 1772 ; 



114 

(d) Eeport of the Governor of Veragua, Don 

Felix Francisco Bejarano, in 1775 ; 

(e) Description of the Viceroyalty of Santa Fe, 

of Tierra Fimie and of Veragua, by the 
Missionary Sobreviela, in 1796 ; 

(f) Official Communication of the Governor of the 

Islands of San Andres, in 1802; and 
Resume. 

II. The Royal Order of November 20, 1803, Referring 

to the Mosquito Coast. 

1. Antecedents, Formation and Text of the Order. 

2. That Order Was Not Applicable to Costa Rica, 

Because What Was C^-lled the Mosquito 
Coast Ended Before That Province Began. 

3. Military and Transitory Character of This Royal 

Order. 

4. The Order Could Not Change the Laws of Terri- 

torial Division. 

5. The Inefficacy and Abrogations of This Royal 

Order. 

III. Last Years of the Spanish Sovereignty. 

1. First Period of the Constitutional Regime in 
Spain ; 

(a) General Organic Provisions ; 

(b) Continuation of the Dependency of the North- 

ern Coast of Costa Rica Upon the Govern- 
ment of That Province ; 

(c) Description of the Province of Costa Rica in 

the Proposal Made by Its Deputy in the 
Cortes For the Creation of a Bishopric. 



lis 

2. Absolute Governnient of Fernando VII. 

3. Second Constitutional Period. 

IV. The Independence and the *'Uti Possidetis," 

1. Independence of the Provinces of Gruatemala and 

of New Granada. 

2. The Principle of Colonial "Uti Possidetis." 

3. Application of This Principle. 

I. 

FROM THE RECOPJLACION (1680) TO 1803. 

1. Creation of the Viceroyalty of Santa Fe and Vicas- 
situdes of the Audienda of Panama, Until Its Sup- 
pression (1717 to 1751). 

In the XVIIIth century the territorial division es- 
tablished by the Recopilacion de Indias was modified, 
by the creation of two more viceroyalties, that of Santa 
Fe and that of Buenos Aires. 

The Viceroyalty of Santa Fe, or of New Granada, 
was created by decree of the King and Royal cedula 
of May 27, 1717 (Doc. No. 155), recasting in the Audi- 
encia of Santa Fe the Audiencias of Panama and Quito, 
all of which depended upon the Viceroyalty of Peru, 
and adding the Comandancia of Caracas, which be- 
longed to the Audiencia of Santo Domingo. There was 
placed at the head of this new circumscription a vice- 
roy, who was to reside in the city of Santa Fe and who 
should be Governor, Captain-General and President 
of the Audiencia of that name, *** * * in the same 



116 

manner as are those of Peru and New Spain, and with 
the same powers." 

This vieeroyaity, not having produced the results 
expected of it, was suppressed a few years later, in 
1723, and the Audiencia of Panama, which had been 
suppressed when it was formed, was re-established in 
the latter year. 

But in view of the claims of New Granada and of 
what was proposed by the Council of the Indies, the 
King provided for the re-establishment of the vice- 
royalty, by Royal cedula of August 20, 1739 (Doc. No. 
163), which reads as follows: 

"I have resolved to establish anew the Vice- 
royalty of the New Kingdom of Granada and 
have appointed therefor the Lieutenant-General 
Don Sebastian de Eslava * * *, being also 
President of my Royal Audiencia of the city of 
Santa Fe in said New Kingdom of Granada and 
Governor and Captain-General of the jurisdic 
tion thereof and provinces that have been added 
thereto, which are : that of Panama with the ter- 
ritory of its Captaincy-General and Audiencia, 
that is to say those of Portohelo, Veragua and 
Darien; those of Choco, Kingdom of Quito, Po- 
payan and Guayaquil * * * the Audiencias 
of Panama and Quito to continue and subsist 
as they are, with the same subordination and 
dependency from this Viceroy as the others 
have that are subordinated to the Viceroyalties 
of Peru and Mexico, with regard to their re 
spective Viceroys." 

Within the new vieeroyaity and under the depend- 
ency of its viceroy, he established three Comandancias 
generates : those of Panama, Cartagena and Caracas. 



117 

The Audiencia of Panama, then, passed from the 
Viceroyalty of Peru to that of Santa Fe. But it was 
suppressed later on, by the Royal cedula of July 17, 
1751 (Doc. No. 168), because of the small amount of 
business it was called upon to transact, the many con- 
flicts it produced and the decadence of its provinces. 
The King directed that all the political and military 
matters of the City of Panama and Kingdom of Tierra 
Firme should be left in charge of a governor and 
lieutenant-general ''upon the same footing as the Gov- 
ernors of Cartagena and Veracimz serve," under the 
jurisdiction of the Audiencia of Santa Fe. 

2. The Province of Veragua Passed Into Dependence 
Upon the Viceroyalty and Audiencia of Santa Fe; 
Costa Rica Continued Dependent Upon the Au- 
dencia of Guatemala of the Viceroyalty of Mexico. 

The Viceroyalty of Santa Fe having been created 
and the Audiencia of Panama suppressed, the Province 
of Veragua passed, together with that of Tierra Firme, 
Portobelo and Darien, as the said Royal cedula of 1739 
expressly states, into dependence upon the Viceroyalty 
and Audiencia of Santa Fe, or upon the New Kingdom 
of Granada, and so remained until the independence. 

On the other hand the Province of Costa Rica, which, 
from the creation of the Audiencia of the Confines, or 
Guatemala, formed part of it, continued to depend 
upon the Audiencia and Captaincy-General of Guate- 
mala, of the Viceroyalty of New Spain (Mexico), until 
its colonial emancipation. 

This is clearly shown by the fact that the Audiencia 
of Guatemala continued, as it did before the Re 



118 

Gopilacion de Indias, to act, in all the affairs of Costa 
Rica, as the superior of its governors and to receive 
the communications and orders of the King for their 
discharge, as appears from the numerous cases cited 
in the documents submitted in this litigation. 

And this is corroborated by the fact that the Audi- 
encia of Guatemala constantly filled the offices of gov- 
ernor and captain-general of Costa Rica, ad interim, 
until the Crown made the appointments. It was in 
this temporary fashion that the Audiencia of Guate- 
mala appointed, as Governors and Captains-General 
of Costa Rica, Diego de Herrera Campuzano (1704), 
Jose Antonio Lacayo de Briones (1712), Pedro Ruiz 
de Bustamente (1716), Francisco Carrandi (1736), 
Francisco de Olaechea (1730), Luis Diez Navarro 
(1747), Francisco Fernandez de la Pastora (1754), 
Jose Gonzalez Rancano (1757), Francisco Javier de 
Oriamuno (1763), Juan Flores (1781), Jose Antonio 
Oriamuno and Juan Martinez de Pinillos (1789). 

3. The Crown Continued to Appoint Governors and 
Captains- General of the Province of Costa Rica. 

Charles II who, before the publication of the Recopi- 
lacion, appointed Juan Francisco Saenz as Governor 
and Captain-General of Costa Rica, and Miguel Gomez 
de Lara after he gave his royal sanction to that code, 
appointed two others: Manuel de Bustamente (1692) 
and Francisco Serrano de Reina (1695), fully demon- 
strating, therefore, that in his compilation of laws, he 
had not intended to suppress, nor had he suppressed, 
the Province of Costa Rica. 

His successors continued to fill those offices in pro- 
prietorship, as appears by the appointments of Lo- 



119 

renzo Antonio de Granda (1703), Diego de la Haya 
Fernandez (1718), Baltasar Francisco de Valderrama 
(1724), Antonio Vazquez de la Cuadra (1733). Juan 
Gemmir (1738), Cristobal Ignacio de Soria (1748), 
Manuel Soler (1757), Jose de Nava (1765), Juan Fer- 
nandez de Bobadilla (1771), Jose Perie (1777), Jose 
Vazquez Tellez (1789), Tomas de Acosta (1796), Juan 
de Dios de Ayala (1810) and Bernardo Vallarino 
(1818). 

The titles of these governors and captains-general 
were conferred by Royal cedulas, granting to them the 
same jurisdiction that their predecessors exercised, 
but without changing the boundaries of the province. 

Senor Maura states in his opinion in behalf of Co- 
lombia (page 23) that it is idle to give any attention 
to the period subsequent to 1680, because both parties 
were agreed that the designation of the frontier dis- 
tricts of the Audiencias of Panama and Guatemala 
did not suffer any alteration whatever during the cen- 
turies that followed. 



4. Boundaries of the Viceroyalty of Santa Fe With 
Costa Rica as a Province of the Audiencia of Guate- 
mala and Bordering Thereon. 

After the Viceroyalty of Santa Fe was created and 
the Audiencia of Panama was recast, the boundaries 
of the Province of Costa Rica continued as a matter 
of fact to be the same, on the east, as they were be- 
fore; that is, as separating the Audiencia of Guate- 
mala from the Audiencia of Panama, a dependency of 
the Audiencia of Peru. 



120 

{a) Antecedents. 

We have already seen, in treating of the demarcation 
of Artieda of 1573, how, by virtue thereof, there was 
left included in the Province of Costa Eica, the Valley 
of Guaymi on the north and within the limit marked by 
the Escudo de Veragua, and the Valleys of Chiriqui 
on the south. 

Dr. Alonso Criado de Castilla, the Senior Judge 
of the Audiencia of Panama, on May 7, 1575 (Doc. No. 
64), wrote his ** Description of the Kingdom of Tierra 
Firme, Which is Subject to the Royal Audiencia of 
Panama, ' ' in which he told the King : 

"The territory that is settled in this King- 
dom, as far as the jurisdiction of your Royal 
Audiencia of Panama extends, is eighty leagues 
in length, that is, from the Gulf of San Miguel 
as far as Concepcion de Veragua; and twenty- 
four in width, which is from the same city of 
Concepcion to Philipina. ' ' 

Regarding the Province of Veragua, he asserted that 
it 

n* * * jj^g ^ district thirty leagues in 
length, extending from the said city of Con- 
cepcion, as far as the village of Mariato, and 
in width twenty leagues in its greatest extent, 
which is from the river Calobre as far as the 
said city of Concepcion." 

According to this description of the Audiencia of 
Panama, the demarcation of Artieda was located out- 
side of it. In order to decide the conflict, which had 
arisen between the latter and the Governor of Veragua 
in regard to the settlements Aiiieda had been planning 



121 

to make the Bang, by Royal cedula of August 30, 
1576 (Doc. No. 66), entrusted to the Audiencia of 
Guatemala the duty of determining upon which side 
those establishments were going to lie since they should 
have been dependencies of the governor to whom the 
Guaymi river, the Bay of Almirante and Bocas del 
Drago belonged as the boundaries of his government. 
And, indeed, Artieda founded the city of his name in 
1577, and took possession of the Valley of Guaymi in 
1578 (Doc. Nos. 67 and 68). 

The President of the Audiencia of Guatemala and 
the Judge Inspector (Juez Visitador) of Costa Rica 
issued a commission, in 1591 (Doc. No. 78), to Captain 
Cabral, in the execution of which he travelled over all 
of Bocas del Drago and the Bays of Almirante ; and 

n* * * }iaving entered the Guaymi river, 
he traversed with the soldiers the whole of the 
isthmus of land which lies from the North Sea 
to the South Sea and came out to the savannas 
of Chiriqui." 

We have seen, also, how in 1605, Sojo, the deputy 
of Ocon y Trillo, Governor of Costa Rica, founded the 
city of Santiago de Talamanca, the territory of which 
was marked out as far as the line of the Escudo de 
Veragua, the end of the Government of Costa Rica. 
Dr. Alonso Criado de Castilla, who knew so well the 
Audiencia of Panama, was then President of the Audi - 
encia of Guatemala and in his letter to the King of 
November 30, 1608 (Doc. No. 74), he speaks of the 
territory of the Bay of Almirante as belonging to 
Costa Rica, '** * * which borders upon that of 
Veragua belonging to the district of the Royal Audi 
encia of Panama," and he makes allusion to the con- 



122 

quest of Talamanca and the boundaries of the Valley 
of Duy. 

During the XVIIth century the governors of Costa 
Rica and the Audiencia of Guatemala made great ef- 
forts to subdue the Indians of Talamanca, and the King 
approved the undertakings that were carried on, and 
even bestowed special rewards on their leaders (Doc. 
Nos. 77, 78, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 137, 
138, 139, 153, 161, 237, 238 and 239). The mission- 
aries worked admirably in the XVIIIth century to 
pacify and reduce the Indians of Talamanca, the mis- 
sions having their headquarters in Guatemala, the 
audiencia of which, and the Province of Costa Rica, 
helped them so far as they were able by supplying them 
with necessities and protecting them with military 
escorts (Doc. Nos. 140, 142, 143, 144, 145, 147, 149, 152, 
153, 158, 164, 170, 172, 175, 178, 217 and 240). 

On the southern side of the Province of Costa Rica, 
the Valleys of Chiriqui, expressly embraced in the de- 
marcation of Artieda, were always a border region 
with the Province of Veragua, although by toleration 
they did not remain wholly within the former, for the 
Chiriqui Vie jo river was considered as the division- 
ary line. At that river was fixed the boundary of the 
Corregimiento of Quepo and Boruca, to which the 
Royal cedulas of April 28, 1709 (Doc. No. 146), Sep- 
tember 1, 1713 (Doc. No. 152), and May 24, 1740 (Doc. 
No. 164), refer. 

Such was the state of things when the Viceroyalty 
of Santa Fe was created; but by its creation the Audi- 
encia of Guatemala suffered no change whatever in 
its boundaries, because all action in the matter of that 
audiencia was reduced to the effort to preserve its 
contiguity with the Audiencia of Panama, although 



123 

dependent upon the new viceroyalty instead of the 
Viceroyalty of Peru; and when that audiencia (of 
Panama) was suppressed and its jurisdiction merged 
in the Viceroyalty of Santa Fe, in which it was recast, 
there was no variation in the boundaries of Costa Rica. 

But it is very interesting to follow the descriptions 
of the Viceroyalty of Santa Fe, because in stating its 
boundaries with that of New Spain and the Audiencia 
of Guatemala, those of Costa Rica are confirmed, and 
as a province Costa Rica remained dependent upon the 
latter down to the end of the colonial epoch as has 
been demonstrated. 

(h) Description of the Kingdom of Tierra Firme hy 
the Comandante General of Panama, Don Antonio 
Guill, in 1760. 

The Audiencia of Panama having been suppressed 
in 1751, and its government converted into the Coman- 
dancia general of Tierra Firme, it was directed by 
Royal order of May 1, 1758, that a description should 
be made of it; this was done by Don Antonio Guill y 
Gonzaga, who was then the Comandante general, in a 
report addressed from Panama, September 30, 1760 
(Doc. No. 171), to the Minister of the Indies. 

According to that description, the Government of 
Tierra Firme, was composed, in 1760, of Darien, Pan- 
ama, Portobelo and Veragua. The Province of Ver- 
agua was ruled by a governor, who had under his 
orders the sub-governors or deputies of Nuestra 
Senora de los Remedios and of Santiago al Angel 
(Alanje), or Chiriqui. The last settlement of the Prov- 
ince of Veragua, on this side, was Bugaba, to the east 



124 

of Chiriqni Viejo river and distant, two leagues from 
the frontier of Costa Rica. 

(c) Description of the Viceroy alty of Santa Fe, hy Its 
Viceroy, the Marquis de la Vega de Armijo, in 1772. 

In the Description and Status of the Viceroyalty of 
Santa Fe, by its Viceroy, the Marquis de la Vega de 
Armijo, written by Dr. Moreno y Escandon, Fiscal 
Protector of the Indians, in 1772 (Doc. No. 174), it is 
stated that this viceroyalty borders on that of Mexico 
by Costa Rica, ' ' and being divided from the Audiencia 
of Guatemala there is left for its district, that of the 
Province of Alanje and Veragua, all the South Coast, 
from the Bay of Chiriqui (or of David) by that of 
Guayaquil to near Cape Blanco * * *. " 

The description goes on to treat of the country to 
the north, east and south down to when it says: 
II* * * ^jj^ij |3y Portobelo and the Government of 
the Province of Veragua it closes the boundary upon 
the Audiencia of Guatemala and Viceroyalty of New 
Spain * * *." 

(d) Report of the Governor of Veragua, Don Felix 

Francisco Bejarano, in 1775. 

The Governor of Veragua, Don Felix Francisco Bej- 
arano, at the request of Guatemala, reported in 1775 
(Doc. No. 175), that the end of Veragua reached as 
far as the frontier of Talamanca, which is left in Costa 
Rica, and therefore with its Bay of the Almirante 
(Bocas del Toro) and its Islands of Tojar, or Colon, 
etc. 



12S 

{e) Description of the Viceroy alty of Santa Fe, of 
Tierra Firme and of Veragua, by the Missionary 
Sohreviela, in 1796. 

In the most interesting work of Fray Manuel So- 
breviela, Missionary of Ocopa, entitled : ' * Description, 
Historic-Geographical, Political, Ecclesiastical and 
Military, of Southern America," (Lima, 1796; Doc. 
No. 181), the Viceroyalty of Santa Fe is first described 
generally, by the statement that it embraces 

***** from the River Chiriqui, of the King- 
dom of Tierra Firme, which is the dividing line 
of this Viceroyalty and of the two Americas by 
the District of Costa Rica, of the Province of 
Guatemala, as far as the neighborhood of the 
Gulf of Maracaibo." 

It then takes up the Kingdom of Tierra Firme, and 
says that it 

" * * * is bounded on the East by the Prov- 
ince of Cartagena, from which it is separated 
by the Eiver San Juan; on the West by the 
River Chiriqui, which serves as the boundary 
of the Province of Costa Rica, in the Kingdom 
of Guatemala; on the North by the North Sea 
and on the South by the Pacific. It is two hun- 
dred leagues in length from East to West ; that 
is, from the River Atrato or Gulf of Darien, as 
far as the River Chiriqui (Vie jo, or old, of 
South), and eighty in width from North to 
South, at the widest part, which is from the port 
or bay of Mariato to the point of the bay or port 
of the River Chagres. This Kingdom is divided 
into three provinces, which are Panama, Ver- 
aguas and Darien." 



126 
Continuing it takes up Veragua: 

"It is bounded on the North by the North Sea ; 
on the South by the Pacific Ocean ; on the East 
by the Province of Panama, and on the West b/ 
the River Chiriqui, which divides it from 
Costa Rica and Kingdom of Guatemala. It is 
sixty leagues from East to West, from the city 
of Nata to the village of Chiriqui and eighty in 
width from the Cape of Conejos on the South 
Sea to the extreme of the Escudo de Veeaguas 
in the North Sea." 

And in describing the principal rivers of the Prov- 
inces of the Kingdom of Tierra Firme, it says : 

*'The first is the River Chiriqui, which rises 
in the mountains in the South part of the Prov- 
ince of Veragua and empties into the South Sea 
or Pacific (Gulf of Chiriqui or Sinus Chiri- 
quensis of the Map of the Jesuits Brentano and 
La Torre). It serves as boundary to this prov- 
ince and to all Southern America which it sepa- 
rates from the Northern and from the District 
of Costa Rica in the Kingdom of Guatemala." 

It is thus seen that the description is complete and 
agrees perfectly with the antecedents we have set forth. 

(/) Official Communication of the Governor of the 
Islands of San Andres, in 1802; and Resume. 

In concluding, let us add that the Escudo de Ver 
agua was even recognized as a border point by the 
Governor of the Islands of San Andres, Don Tomas 
O'Neille, of whom we shall speak hereafter as the in- 
stigator of the Royal order of 1803, which, according 
to Colombia, incorporated Costa Rica in the Viceroy- 
alty of Santa Fe. 



127 

O^Neille, addressing himself to tke President of 
Guatemala, in an official communication of October 
22, 1802 (Doc. No. 184) said: 

''If Your Worship will be pleased to write 
to said Chief (the Viceroy of Santa Fe), and 
get from him a frequent visit of the vessels of 
the King in these waters, for they only go as 
far as the ESCUDO DE VERAGUA, which 
is the limit of the demarcation betiveen the two 
Kingdoms, it would avoid great injury to tho 
State, etc. * * *." 

To recapitulate: the boundaries of the Viceroyalty 
of Santa Fe with the Audiencia of Guatemala at the 
beginning of the XlXth century were : on the north the 
line extending from the Escudo de Veragua which 
corresponds to the Chiriqui (not Vie jo, or old), or 
Culehra, or Calohehora river (by which various names 
it is called) ; and on the south the Chiriqui Vie jo river. 
And, therefore, those were also the boundaries of Costa 
Rica, the last province of the Audiencia of Guatemala, 
bordering on that Viceroyalty. 

n. 

THE ROYAL ORDER OF NOVEMBER 20, 1803, RE- 
FERRING TO THE MOSQUITO COAST. 

1. Antecedents, Formation and Text of the Order. 

From the time of the conquest of Jamaica, the Eng- 
lish never ceased their encroachments upon the Islands 
of San Andres and the Mosquito Coast, which acts 
became a source of continuous conflicts; to this, how- 
ever, the Treaty of London, of July 14, 1786 (Doc. No. 
176), sought to put an end by agreeing that the Eng- 



128 

lisli should evacuate the places where they had estab- 
lished themselves. 

Those islands of San Andres (embracing under that 
appellation those of San Andres, Santa Catalina and 
Providencia), were the subject of serious attention by 
the Spanish rulers, nearly all of their inhabitants hav- 
ing been English and the islands themselves centres of 
smuggling and of forays upon the Mosquito Coast. 

Don Tomas 'Neille, a captain of infantry who had 
been in the military service of the Viceroyalty of Santa 
Fe, was commissioned, in 1789, to visit those islands, 
where he became intimate in friendship and business 
with the Taylor brothers who exercised great influence 
there. The Taylor brothers, in 1794, through the Vice- 
roy of Santa Fe, applied to the King asking that the 
English might be allowed to continue in the islands, 
that a governor be appointed (whose salary they would 
pay), and that Don Tomas 'Neille be named as such 
governor. 

Lieutenant Don Jose del Rio of the Navy who also 
visited those islands by order of the King, gave His 
Majesty a very minute account of them in his extended 
report from Trujillo, dated August 23, 1793 (Doc. No. 
179) ; in this he advised that the islands be abandoned 
and that with their settlers an establishment be made 
at Blueiields on the Mosquito Coast. 

By Royal order of November 6, 1795 (Doc. No. 180), 
it was provided that *'for the present" the English 
should not be compelled to evacuate the Island of San 
Andres and establish themselves at Bluefields ; that this 
might be accomplished later, on a suitable occasion, 
and that Don Tomas 'Neille should be Governor "do 
pendent upon your Captaincy-General (of Guate- 
mala)." 



129 

Scarcely had he taken possession of his office when 
he fell out with the Captain-General of Guatemala, 
who ordered him to leave the islands until the conclu- 
sion of peace with England, and assigned him to va- 
rious military duties in Nicaragua. Having had occa- 
sion to go back to the islands, he petitioned that there 
should be conferred upon him the political and military 
command of the establishments of Trujillo, Cape Gra- 
cias a Dios and San Juan de Nicaragua, with a salary 
of 3,000 pesos, and other extraordinary conditions, all 
of which the Captain-General of Guatemala refused. 

Once back at San Andres he undertook to free its 
government from that of Guatemala, to this end mak- 
ing use of his friends, the Taylors, and counting upon 
the support of his protectors in Santa Fe. 

Under date of December 5, 1802 (Doc. No. 185), 
O'Neille addressed himself to the Minister of War, 
sending him two statements, one from the Alcalde, 
Juan Taylor, of November 25 (Doc. No. 187), and the 
other his own, of December 4 (Doc. No. 186), in which 
he asked for the aggregation of those islands of the 
Mosquito Coast to thie Viceroj^alty of Santa Fe ; these 
statements he forwarded through that viceroyalty in- 
stead of the Captain-General of Guatemala — because 
of the difference in distance, he said. 

Both statements went to the Board of Fortifications 
and Defense of the Indies which, on September 2, 
1803 (Doc. No. 189), reported favorably thereon, add- 
ing that it would be desirable to follow the same course 
with regard to the establishments of Cape Gracias a 
Dios and the Bay of Bluefields on the desert Mosquito 
Coast. The record in the case was returned to the 
Board on the 23rd of the same month, and its attention 
called to the fact that if this plan were carried out it 



130 

would leave Guatemala undefended on the Atlantic 
side. The Board insisted, in its second report of Oc- 
tober 21st (Doc. No. 190), confining itself to the state- 
ment that the segregation would not be injurious to 
Guatemala, since the Mosquito Coast was a wilderness. 
In accord with these reports it was determined to issue 
the Royal order which Don Miguel Cayetano Soler, 
acting as Minister of War, communicated, on Novem- 
ber 20, 1803, to the Captain-General of Guatemala. 

This same Minister in another communication, trans- 
mitted the order to the Viceroy of Santa Fe, and this 
communication is the one that was invoked by Colom- 
bia; it reads as follows: 

' * San Lorenzo, November 30, 1803. 

''Most Excellent Sir: 

"Don Jose Antonio Caballero, in a letter of 
the 20th instant, writes to me, as follows : 

*' 'The King has resolved that the Islands of 
San Andres and the part of the Mosquito Coast 
from Cape Gracias a Dios, inclusive, toward the 
River Chagres, shall be segregated from the 
Captaincy-General of Guatemala and be depend 
ent upon the Viceroyalty of Santa Fe. And His 
Majesty has been pleased to grant to the Gover- 
nor of the said islands, Don Tomas O'Neille, 
the salary of 2,000 pesos fuertes, instead of the 
1,500 which he at present enjoys. By Royal 
Order I inform Your Excellency that the Min- 
istry in your charge should take the necessary 
steps for the fulfillment of this sovereign man- 
date:' all of which I state to you by His Maj- 
esty's coTTimand, for its due execution. 

"May God keep Your Excellency many years. 

"SOLER." 
"To the Vicerov of Santa Fe. 



131 

2. That Order Was Not Applicable to Costa Rica, Be- 
cause What Was Called the Mosquito Coast Ended 
Before That Province Began. 

The importance attributed by Colombia to this Royal 
order is very great, for she assumes that it incor- 
porated into the Viceroyalty of Santa Fe the long 
stretch of territory that extended from Cape Gracias 
a Dios as far as the Chagres river, within which ex- 
tension Costa Rica was embraced. That is to say, that 
just as Colombia argued that ' ' all Veragua, and there- 
fore Costa Rica, belongs to Tierra Firme," now she 
argues that ''all of the Mosquito Coast as far as the 
Chagres river, and therefore Costa Rica, belongs to 
the Viceroyalty of Santa Fe. ' ' 

But this Royal order was not appHcable to Costa 
Rica for the very simple reason that it referred only 
to the Mosquito Coast which ended on the south before 
that province began. 

The origin of the name and the extent of the Mos- 
quito Coast are clearly shown by the official documents. 

The Bishop of Nicaragua, Fray Benito Garret, in 
his report to the King of November 30, 1711 (Doe. 
No. 151), relates that in the year 1641 a vessel laden 
with negroes was wrecked on the coast that extends 
from Trujillo as far as the mouth of the San Juan 
river ; that these negroes were forced into a fight with 
the Carib Indians, and the latter, defeated, withdrew 
through the mountains towards the territories of Se- 
govia and Chontales; that the victors took to them- 
selves the women of defeated Indians, and that their 
descendants were called " Zambos," the issue of ne- 
groes and Indians. This accords, he says, with the 



133 

account given by a negro, named Juan Ramon, ''who 
lives now in this city (Granada de Nicaragua) and 
whose advanced age accords well with the recollection 
which he asserts that he has of the facts he narrates. ' ' 
The Bishop complained to the King of the lament- 
able ravages and captures made by the Zambos who 
occupied the locality called Puntagorda and the said 
Mosquito territory which is, as indicated in a paren- 
thesis, the ''sea coast from the mouth of the River 
San Juan as far as the city of Trujillo in the Province 
of Honduras," the longitude of which, he adds fur- 
ther on, would be about sixty leagues. And he asks 
the King for the subjugation of the Zambos, suggest- 
ing the best means to that end. 

By Royal cedula of April 30, 1714 (Doc. No. 154), 
the King directed the Captain-General of Guatemala 
to undertake the conquest of the Mosquitos, he ascribed 
their origin to the same source as that given in the 
Bishop's account, and took into consideration the re- 
ports of the said captain-general regarding the settle- 
ments of the Carib Indians, negroes and Zambos in 
Mosquito island, on the side of the Province of Nicar- 
agua; and said further that it was well known that 
they were on the coast of the North Sea, spread over 
an area of fifty to sixty leagues, beginning to count 
at twelve leagues from the San Juan river up to twenty 
from the city of Trujillo; that Zambos were skillful 
in the handling of arms, and were assisted and pro- 
tected by the English of Jamaica, with whom they 
carried on their trade. 

The attempt to subdue the Mosquitos was not sue 
cessful. These people, clever in the management of 
boats and even the firearms with which they were sup- 
plied by the English, made continual incursions by 



133 

sea and land upon tlie neighboring settlements, carry 
ing with them desolation, captivity and death. As the 
result of a report from the Captain-General of Guate- 
mala dated May 10, 1737, and relating to a treaty of 
peace proposed by the so-called **King" of the Mos- 
quitos, and to the two settlements which the English 
had begun to establish on that coast, the Council of 
the Indies rendered an opinion setting forth the means 
for subduing the Mosquitos and avoiding the evils of 
their relations with the English; this opinion was ap- 
proved by the King in the Royal cedula of August 8, 
1739 (Doc. No. 162). 

In that Opinion of the Council of the Indies, of July 
8, 1739 (Doc. No. 162), the following appears: 

** These people owe their appellation and ori- 
gin to the Island of Mosquitos, where, in the 
year 1641, there arrived a vessel laden with 
negroes (who captured the Indians in order to 
sell them as slaves and kept the women for pur- 
poses of procreation) * * *. According to 
reports from the President and others, they oc- 
cupy at the present time more than sixty leagues 
of land extending from the jurisdiction of Co- 
mayagua (Honduras) as far as that of Costa 
Rica of the dominions of Your Majesty adjoin 
ing the coast of the North Sea, their territory' 
being in width only three leagues of productive 
and habitable land extending up to the slope of 
the mountains that separate them from the do- 
minions of Your Majesty * * *. In those 
sixty leagues they have established for their 
dwellings twenty-four settlements or hamlets 
* * * ; by the last and most reliable news that 
has been received, the Mosquitos number 2,000 
men who bear arms. They also have amon^ 
them Spaniards, French, English, apostate In- 
dians and fugitive slaves, their territory being 



134 

a general asylum for all the scoundrels who flee 
from justice * * *. The care of the Council 
is growing on account of these enemies, because 
they are found to have considerably increased; 
and not only have they a chief * * *^ but they 
have the boldness to call him a King and demand 
that Your Majesty shall recognize him as such 
in a treaty of peace and commerce, which un- 
heard of, insolent audacity leads us to suspect 
that it does not come from them alone. This 
presumption becomes probable * * * when 
it is noted that these barbarous Mosquitos are 
intimate and in league with the English of Ja- 
maica, of New England, etc. * * *." 

The Captain-General of Guatemala, Don Pedro de 
Rivera, in a report of November 23, 1742 (Doc. No. 
166), addressed to the King in response to his order, 
concerning the measures for the expulsion of the Mos- 
quitos, says of them : 

"At a short distance from Cape Gracias a 
Dios, which is on the coast of the Province of 
Comayagua, there is a small island named Mos 
quitos, in which, in the year 1650 (acc(ording \o 
tradition) a vessel was wrecked which carried 
negroes under the charge of Lorenzo Gramalxo, 
of the Portuguese nation * * *; they inter 
bred with the Indians, and produced the Zam 
bos, under the designation of "Mosquitos," de- 
rived from the island upon which the negroes 
were shipwrecked, and this is the distinctive ap- 
pellation by which they are known, and this 
name applies to all those that dwell with them, 
they being the heathen Indians that inhabit 
those territories, the mulattoes and negroes who 
have left the dominions of His Majesty in order 
to enjoy the free life without any subjection 
* * *. The English who live among the Zam 
bos are most degraded * * * j the Zambos are 



135 

so far subordinate to the English nation that 
they obey its orders as if they were under its 
sovereignty, and the one that they have among 
them under the title of King is invested with it 
by the Governor of Jamaica. ' * 

The Captain-General of Guatemala enumerates 
twenty-seven hamlets which the Zamhos occupied at 
that time and which lay generally along ''the rivers 
which are to be found behveen the two Provinces of 
Honduras and Costa Rica," also mentioned by him. 
And tie describes the Island of San Andres, on which 
lived the Zambos "in conjunction with the English," 
situated thirty leagues from that coast. 

It results from these official documents that the evi- 
dence is clear that it was the Mosquito Coast that was 
occupied by this little race of Zambos, which sprang 
from the union of the negroes who came to the Island 
of Mosquitos and the Carib Indians located in the 
Province of Nicaragua, between the Provinces of Hon 
duras and Costa Rica. Its length is fixed at sixty 
leagues. 

The Columbian publicist and statesman, Don Pedro 
Fernandez Madrid, claims, like the majority of English 
geographers, that the Mosquito Coast begins at Cape 
Honduras, but he says that it ends at Punta Gorda, 
near the most northern arm of the San Juan river of 
Nicaragua. The Bishop of Nicaragua counts the sixty 
leagues from the mouth of the San Juan river to the 
city of Trujillo, indicating Punta Gorda as the last 
point in the south occupied by the Zambos, from 
whence they make their raids. The Royal cedula of 
1714 begins to count the fifty or sixty leagues, which 
it says this coast has, at twelve leagues to the north 



136 

of the San Juan river up to twenty from the city of 
Trujillo. The Council of the Indies, in its opinion of 
1739, starts from the end of Comayagua ; according to 
this the sixty leagues of which it speaks begin at Cape 
Gracias a Dios and end in the centre of the lagoon of 
Bluefields. 

It must be remembered that the Province of Costa 
Rica ended on the north at the Desaguadero, or San 
Juan river, and that this boundary is found some ten 
leagues beyond Punta Gorda, twenty from Bluefields 
and eighty from Cape Gracias a Dios. Therefore Costa 
Eica was not embraced in the Mosquito Coast . 

It is true that Costa Rica reached as far as Cape 
Gracias a Dios and even Cape Camaron in the early 
times, still it did not extend beyond the Desaguadero, 
or San Juan river, after it was definitively bounded, 
in 1573, with the Artieda's Government. The portion 
segregated from Costa Rica in that year, is that with 
which, in 1576, the Province of Teguzgalpa was formed, 
and that which corresponds to the Mosquito Coast. 
This northern portion was divided between Honduras 
and Nicaragua, by Royal cedulas of August 23, 1745, 
^ \ establishing as the divisionary point Cape Gracias a 
Dios, which is the point that was fixed as the boundary 
between the present republics of those names by the 
award of the King of Spain hereinbefore cited. 

Because the Royal order of 1803 says: *** * * the 
Islands of San Andres and the part of the Mosquito 
coast from Cape Gracias a Dios, inclusive, toward the 
River Chagres, shall be segregated, etc.," Colombia 
claims that Costa Rica was also segregated, since 
it lay that side of the Chagres river. But the 
Royal order does not say hasta (to, or as far as) but 
hacia (toward) the Chagres river, and consequently 



137 

this river does not mark the boundary, but only indi- 
cates the direction. Let us remember the laws of the 
demarcation of audiencias and the numerous Royal 
orders which we have cited, and it will be seen that 
whenever it was desired to indicate a boundary, the 
word naturally employed was "hasta" (to, or as far 
as) ; whereas, when it was desired to indicate direction 
the word used was "hacia" (toward) or '^d la parte 
de" (on the side of). These latter words are more ex- 
pressive, for instance, when, in the demarcation of the 
Province of Costa Rica assigned to Ortiz de Elgueta, 
Cavallon and Vazquez de Coronado, it says from Hon- 
duras and Nicaragua " a la parte de (on the side of) 
the cities of Nombre de Dios and of Panama"; and 
yet Colombia will not acknowledge that this signified 
that the Province Costa Rica should have reached as 
far as the line determined by those two cities. Nor can 
Colombia be understood as meaning to say that the 
territory incorporated in the Viceroyalty of Santa Fe 
was that which reached as far as the Chagres river, 
next to Portobelo, since Portobelo and the Province 
of Veragua already belonged to it. 

If the reports of the Board of Fortifications (Doc. 
Nos. 189 and 190), by virtue of which the Royal order 
of 1803 was issued are read, it will be seen that they 
do not refer to the whole of the Mosquito Coast, but 
only to the establishments of Cape Gracias a Dios and 
Bay of Bluefields. When, by virtue of the Treaty of 
London, of 1786 (Doc. No. 176), the English evacu- 
ated the Mosquito Coast, four settlements or estab- 
lishments of Spaniards were directed to be created 
therein ; and it was especially in order to protect these 
establishments that that Royal order was issued. If 
it says the part of the Mosquito Coast from Cape 



338 

Gracias a Dios towards the Chagres river, it is iii 
order that it should not be understood as meaning 
from Cape Gracias a Dios in the direction of Honduras, 
but towards the south, and as far as those establish- 
ments, which had as their maximum limit the Desa 
guadero or San Juan river, might reach. 

3. Military and Transitory Character of That Royal 

Order. 

Even assuming that it had been desired to include 
Costa Rica in the Royal order of 1803, that ordei 
lacked ■ the force to change the legal status of the 
province as to administrative dependency and boun- 
daries, as we are about to show; and as such a hypo- 
thesis is only supported by the words "toward the 
River Chagres," it cannot be seriously considered as 
a sufficient basis for the -suppression of a province or 
its transfer from one viceroyalty to another or from 
one audiencia to another. 

From its preparation and its purpose that Royal 
order can only be characterized as a military order. 
It was issued by the Minister of War, as a result of 
petitions addressed to him, and the approval not of 
tJie Supreme Council of the Indies, but of the Board 
of Fortifications and Defense of the Indies; and it 
was promulgated by the same ministry to the military 
and not to the civil authorities. Its purpose, as shown 
by the reports of that Board and deduced from the 
history that has been given of the Mosquitos, allied 
with the English, was to provide a better defence for 
the Islands of San Andres and the Spanish establish- 
ments on the Mosquito Coast, against the attacks from 
the Zamhos and English. 



139 

Responding to these needs for protection, and also 
for the prevention of smuggling, other provisions had 
been previously enacted entrusting the guardianship 
of these coasts to the neighboring governors without 
any idea of making thereby any change in the demar- 
cations of their respective districts. Thus, we see the 
Royal cedula of August 23, 1745 (Doc. No. 167), which 
appointed the Governor of Nicaragua, Don Alonso 
Fernandez de Heredia, ComandaMe General de las ^ 
Armas, and sought to prevent illicit commerce through- 
out the territory embraced between Cape Gracias a 
Dios and the Chagres river; the Royal order of Sep- 
tember 24, 1786 (Doc. No. 177), addressed to the Cap- 
tain-General of Guatemala, in which he is informed 
that the Viceroys of Mexico and Santa Fe have been 
directed that he shall be given whatever he asks for in 
order to facilitate the evacuation of the Mosquito ter- 
ritory ; that of February 26, 1788, to the Gomandante 
de Marina of Havana, to place himself at the orders 
of the Captain-General of Guatemala, etc. 

Such measures were merely transitory in character, 
and they ceased to be effective when there came a 
change in the circumstances or personnel which had 
called them forth. O'Neille knew how to take advan- 
tage of the circumstances in which those islands, and 
the establishments of the Mosquito Coast, were placed 
by the orders for evacuation given to the English and 
the latent state of war with England, in order to ad 
vance his personal ambitions. But the Royal order 
of 1803 served only to give to O'Neille the Govern- 
ment of the Island of San Andres ; this he surrendered 
to the English, in 1806, but it was soon afterwards 
restored by them to Spain. 



140 

4. The Order Could Not Change the Laws of Terri- 
torial Division. 

If, nevertheless, the Royal order of November 20, 
1803, be considered to be a measure not military and 
transitory in character, but rather one having, as Co- 
lombia claims, the capacity of a legislative mandate 
which changed territorial division, then, the question 
being placed on this ground, we are impelled to as- 
sert — and most positively — that the Royal order in 
' question, according to the laws of the Recopilacion 
/\ de Indias, which governed when it was issued was null 

and void. 

Both parties are in accord in recognizing that the 
Recopilacion de Indias gave the character of laivs to 
all those which it embraced in its text, and commanded 
that they should be obeyed and complied with as such, 
as directed by the Royal cedula of May 18, 1680, which 
sanctioned it; and it is important to remember what 
we have heretofore stated in regard to the value of 
those laws when discussing their relations to the Royal 
dispositions prior and subsequent to the pubhcation 
of that code. 

Law 1, title 1, book II (Doc. No. 92), lays down the 
doctrine that 

n* * * those only (the laws of the i^ecoptZa- 
cion) shall have the force of law and pragmatic 
sanction^ in that which they decide and determine ; 
.'md if it should be desirable that others be made 
besides those contained ui this book, let the Vice- 
roys, Presidents, Audiencias, Governors and Al- 
caldes mayores advise and inform us as to the 

' A pragmatic sanction has the force and effect of a solemn ordinance 
or decree by the legislative authority of the State. 



141 

same through the Council of the Indies, giving 
the motives and reasons why they are submitted 
in order that, being understood, such resolution 
may be taken as is most desirable; and they may 
be added in a separate volume. ' ' 

Law 2, title 2, book II (Doc. No. 94), confers on the 
Council of the Indies supreme jurisdiction over all the 
Western Indies, and empowers that body to ''order 
and make, with our advice the general and special 
Laws, Pragmatics, Ordinances and Provisiones. ' ' 

Law 1, title 15, book II (Doc. No. 105), of Philip IV, 
declares that all the territory that is discovered in the 
Indies is divided into audiencias, which are subordi- 
nate "* * * to our Supreme Council of the Indies, 
which represents our Eoyal Person ' ' ; and it commands 
that the audiencias and the governments shall be pre- 
served as ''they now" are in the district of each, and 
that "* * * no change shall be made therein, with- 
out our express order or that of our said Council." 

To these laws, which we have hereinbefore cited, 
should be added the following, from title 2, book II, in 
which the direction is confirmed that measures of a leg- 
islative character and, in general, those referring to 
the administration of the Indies must be passed upon 
by the Supreme Council of the Indies, which council 
was to be subject to a fixed procedure, and charged 
with the execution and observance of those laws. 

Law 6 (Doc. No. 95) charges the Council of the 
Indies that it shall always have a description and full 
investigation made of all matters concerning the con- 
ditions of the Indies "* * * which may become 
matters for the administrative or legal action." And 
Law 12 (Doc. No. 96) reads: 



142 

''Thus We command, that whenever those of 
our Council of the Indies may have to provide 
and direct the Laws and general Provisions for 
the good government of the Indies, they may 
be very well informed and sure beforehand of 
what has already been provided in the matters 
in question, and they must previously acquire 
the fullest possible information and notice about 
the things, affairs and territories concerned, and 
hear also the advice of those who govern therein 
and of those who might be able to throw any 
light on the matters, unless delay in asking for 
information may cause detriment. ' ' 

Law 14 (Doc. No. 97) requires that the Council of 
the Indies shall meet in full membership "* * * for 
the consideration of general matters of government, 
such as making Laws and pragmatics and the inter- 
pretation of derogation thereof, the estahlishment of 
audiencias, erection of churches and dismemberment, 
division and union thereof, and other matters which 
in the opinion of the President or Governor are im- 
portant/' And not only this, but it is particularly 
provided in Law 15 (Doc. No. 98), that two-thirds of 
the members of the Council ''must agree in an opin- 
ion" whenever there shall be a question as to '' making 
new Laws or repealing the old ones.',' 

Law 17 (Doc. No. 99) entrusts to the Council the 
execution of the orders of the Eang for better pro- 
vision and certainty; Law 18 (Doc. No. 100) provides 
that the Council shall report to the King whenever it 
may receive orders of doubtful interpretation ; Law 24 
(Doc. No. 101) charges it to arrange always that the 
new laws and provisions be published where and when 
it may be best, and Law 25 (Doc. No. 102) directs it 
*'* * * to ascertain and understand how the Laws 



143 

We provide and order are being obeyed and fulfilled; 
and that they severely punish according to law those 
who by perversity or neglect shall not comply there- 
with or execute them. ' ' 

We will cite, finally, Law* 23, title 6, book II (Doc. 
No. 104), providing that the provisions and despatches 
in judicial matters between parties, which are issued 
by the Council of the Indies, shall be issued in the 
name of the King, without the formality of his signa- 
nature; but that all other matters of government, 
mercy and justice arising in the Indies shall be con- 
sidered and despatched by the King, as had been done 
theretofore. 

All of these laws were violated by the Royal order 
of November 20, 1803, since it was not given by the 
King, but in the name of the King — it was not dic- 
tated in consultation with the Supreme Council of the 
Indies, but upon a report of the Board of Fortifica- 
tions ; and not having been acted upon by the Council 
(to which was entrusted the supreme jurisdiction in 
this regard), the guaranties were left unfulfilled in 
respect of the information to be given by the authori- 
ties interested, the full quorum and the minimum of 
votes, which the Recopilacion required in order to 
change the laws of the Indies. 

And as it was not the intention of the Government to 
make a law which should change the prior laws of 
territorial division, all of which had been made in 
the Council of the Indies, but simply to dictate a Royal 
order of a. ministerial character, the order was signed 
**in the name of the King," and was transmitted by the 
Secretaryship of the Department of War, in order to 
conform to military convenience. 

Counsel for Colombia, who expend so much effort 



144 

in insisting upon legislative acts for the establishment 
of territorial division — to the extent, even, of denying 
validity to the Eoyal demarcatory cedulas that ante- 
dated the Recopilacion de Indias — deliberately ignore 
that code in order to give legislative force to the Royal 
order of 1803, and maintain that all the Royal orders 
issued by the absolute Monarchy had the same legal 
force as the laws now made by the King and the Cortes, 
in the Constitutional Monarchy. But that is not 
correct. 

It is true that when the absolute Monarchy had once 
been consolidated and the glorious traditions of the 
Cortes of Castile and Aragon had been lost, the will of 
the Monarch was law, subject to no external limita 
tions ; but this will established differences with regard 
to the exercise of power and limited itself by dictating 
rules of a general character, to which resolutions had 
to be adjusted, according to the nature of the particular 
cases. 

Although the division of powers now in operation did 
not then exist, the differences between the function or' 
legislating and that of administering could not have 
been ignored; neither was it possible for the King to 
have done everything by himself. Therefore the juris- 
diction was divided into that which was retained and 
that which was delegated, accordingly as the King 
reserved to himself the direct exercise of that power 
or delegated or confided it to the councils, ministers or 
judges. It is clear that the King did exercise the 
legislative power, by himself alone, and to avoid all 
doubt as to the authority from which those legislative 
acts emanated, they must have been headed with the 
name of the King and borne the signature, ''I, the 
King." In this manner the resolutions in matters of 



145 

government and administration reserved to the Mon- 
arch were headed and signed. Such provisions ema- 
nated directly from the King, and were called prag- 
matics and Royal cedulas; they differed essentially 
from Royal orders, which conld be issned in his name 
without his signature. 

Notwithstanding the delegation of power toi the 
Council of the Indies was so ample, the Recopilacion 
established the rule that the provisions for govern- 
ment, mercy and justice for the Indies, were to be 
issued and despatched by the King, as he had been 
doing ; that is to say, by Royal cedulas. And that code, 
in treating of the territorial division, positively pro- 
hibited any alteration be made thereof, "without the 
express order of the King or of the Council of the 
Indies." 

So, then, the Royal order of November 20, 1803, 
which was not a Royal cedula enacted by the King, 
but a ministerial order issued "in the name of the 
King, ' ' without the advice of the Council of the Indies, 
and as the concluding act of an administrative pro- . 
ceeding, almost of a personal character (the govern- 
ment of Don Tomas O'Neille), it was lacking in leg- 
islative force, or even in the legal value of a decree in 
a matter of civil demarcation and jurisdictional fixing 
of boundaries. 

The authority of absolute monarchs, as in every 
other kind of government, was of two kinds: discre- 
tionary and regulated, accordingly as it was directed to 
matters that were or were not subject to pre-existing 
regulations. The monarch was under no compulsion to 
issue such rules, but once issued he had to act in accord- 
ance therewith, unless he modified them or declared 



146 

exception thereto. The Recopilacion de Indias estab- 
lished the procedure for the amendment of the laws 
which it contained and for the adoption of new laws, 
and required previous information to be given to the 
Council of the Indies, the consideration by the latter 
in full membership, the favorable opinion of two-thirds 
of the voting members and the intervention of that 
Council in the publication and execution of the law. 
None of these things was done in respect of the Royal 
order of 1803; therefore, it could not have the char- 
acter of a law. 

Spanish legislation did not tolerate such transgres- 
sions of legal procedure. It declared to be null and 
void all dispositions which were not in conformity with 
legal formalities, or which might be contrary to pre- 
existing law which might be in force. Law 2, title 4, 
book III of the Novisima Recopilacion, says : 

''Since it happens that by importunity of 
some or in some other way We may grant and 
deliver some letters or Royal patents in contra- 
vention of right or contrary to law or statute 
in force, therefore We command that. such let- 
ters or Royal patents shall be of no value nor 
shall they be complied with, although they may 
contain the provision that they are to be exe- 
cuted notwithstanding any statute or law or 
ordinance or any other abrogatory clauses 
whatsoever." 

And this is applicable to the present case, not only 
because it shows that the general system of Spain in 
the matter of legislation was not one of despotism, but 
also for the reason that Law 2, title 1, book II (Doc. 
No. 93), of the Recopilacion de Indias directs that the 
legislation of Castile shall be supplemental thereto. 



147 

It is important, also, to note that the laws of the 
Recopilacion de Indias continued in force in the Span- 
ish-American provinces until their independence, in 
so far as they may not have been modified by subse- 
quent provisions of a legislative character; and the 
publications of that code which were made after 1680 
were nothing more than mere new editions thereof. 
The fact is that the Royal order of November 20, 1803, 
does not figure in the chronological list of the Eoyal 
cedulas, Royal orders and decrees embraced in the 
notes appended to the Laws of the Indies, in the Fifth 
Edition (1841), approved by the Court of the Indies 
(Sala de Indias) of the Supreme Tribunal and the 
Regency of the Klingdom, which we have before us. 

We will say, finally, that Colombia's argument, in 
support of the legal force of the Royal order of 1803, 
based as it is on the fact that there was another order 
of like character issued July 15, 1802, relating to the 
segregating of the Government and C omandancia 
General of Maynas from the Viceroyalty of Santa Fe 
and its aggregation to that of Peru, proves quite the 
contrary from what Colombia desires to prove and it 
constitutes the best possible confirmation of the doc- 
trine which we have stated. 

It was not by a Royal order, dictated in the name of 
the King, but by the Royal cedula of July 15, 1802 
(Doc. No. 183), by the King himself, speaking in his 
own name, issued to the viceroys affected thereby, that 
the Government and Comandancia General of Maynas 
was created ; it was formed out of territory which was 
minutely marked out, segregated from the Viceroyalty 
of Santa Fe and incorporated into that of Peru. It 
was the result of protracted proceedings that extended 
over a period of twenty-five years, initiated by Don 



148 

Francisco Requena, Royal Commissioner of Bounda- 
ries, who administered that territory for a long time. 
It was pursued from the very beginning before the 
Council of the Indies which, after the fullest informa- 
tion from the viceroys and audiencias interested, and 
in conformity with the opinions of the Fiscales (Attor- 
neys General) of Peru and New Spain and of the 
Contaduria General (General Financial Office), agreed 
in full membership to suggest this change in an opinion 
to the King. The Royal cedula approving it was com- 
municated, as was provided therein, to the Viceroys of 
Peru and New Granada, to the President of the Au- 
diencia of Quito, to the Archbishop of Lima and to 
the Bishops of Quito and of Trujillo; all obeyed and 
complied with it. And besides it was proclaimed from 
town to town.^ 

This was the legal course to be pursued, and the 
course which would have been pursued had it been de- 
sired, by the issuance of the Royal order of 1803, to 
change the demarcation of the Viceroyalties of Santa 
Fe and New Spain and the jurisdictional limits of 
their respective audiencias and governments. 

5. The Inefl&cacy and Abrogation of This Royal Order. 

Furthermore, the Royal order of November 20, 1803, 
called that of "San Lorenzo," fell morally still-born; 
no one took any notice of it, and it was contradicted by 

(i) This Royal cedula of 1802, relating to the Government of 
Maynas, is discussed at length in the work written by one of the 
counsel herein. See "A Study of the Question of Boundaries 
between the Republics of Peru and Ecuador" (Estudio de la cues- 
tion de limites entre las Republicas del Peru y del Ecuador), Madrid, 
1907. Translated into English by Harry Weston Van Dyke, Wash- 
ington, 1910. 



149 

numerous provisions, which proceeded in every case as 
though it had never existed. 

As soon as the Brigadier, Don Roque Abarca, In- 
spector of Militia of the Captaincy-General of Guate- 
mala, received knowledge of this Royal order, he sent 
a communication (Doc. No. 194) to the Captain-General 
and President of the Audiencia, Don Antonio Gonzalez, 
setting forth the great injuries that would result from 
its execution, and showing that even were it to be in- 
sisted upon, it was undesirable in every way to confide 
its execution to O'Neille. The President, Gonzalez, 
forwarded these observations to the Minister of War, 
in the despatch of June 3, 1804 (Doc. No. 195), making 
them his own and stating that they were in accord with 
his information and the documents which he had before 
him. 

The Brigadier Abarca declared that O'Neille *s sole 
purpose was to carry on contraband trade on a large 
scale, as he already had been doing (or protecting it) 
with Jamaica; that for this purpose he falsified the 
facts and contradicted what he had said in writing; 
that the accepted plan of O'Neille was the very same 
which he had proposed to them, the captain-general 
and himself, and which they had rejected with indigna- 
tion ; that the plan conceived by 'Neille was imprac- 
ticable and its realization could only be considered as 
the work of a crazy person, or of expert smugglers; 
and that the plan which ought to be pursued for the 
colonization of the Mosquito Coast was another and 
very different one, the one which he advised — slow 
but sure. 

So energetic an attack by the Captain-General of ) 
Guatemala took away all the moral authority of the [ 
Royal order of 1803, and left it but a dead letter. 



ISO 

The Captain-General of Guatemala kept right on 
acting in the matters relating to the Mosquito Coast, 
as is proved by numerous documents and especially by 
the Royal order of November 13, 1806 (Doc. No. 197). 
That official had applied to the Secretaryship of State 
and War (Doc. No. 193), in a complaint against the 
Intendant of Comayagua (Honduras), who claimed to 
have the administration of the establishments of the 
Mosquito Coast, saying that they had "always de- 
pended immediately upon this Captaincy-General," 
and the Royal order says: 

"The King having been informed by the let- 
ters of Your Worship * * * and by the 
documents accompanying them * * * His 
Majesty has resolved that Your Worship is the 
one who must have sole charge and the absolute 
cognizance of all the aifairs that arise in the 
Colony of Trujillo and other military posts of 
the Coast of Mosquitos, relating to the four 
matters referred to (Justice, Police, Finance 
and War), in compliance with the Royal Orders 
issued since the year 1762. winch authorized yoa 
to occupy, defend and settle that Coast, until 
that object being in whole or in part secured, 
His Majesty may deem it suitable to change the 
actual system * * *'* 

So that, even supposing that the Royal order of 
1803 ever had any legal value and could have been put 
into practice, it was abrogated by this order of 1806 
which retained the Mosquito Coast under the depend- 
ency of Guatemala, in the four departments of Justice, 
Police, Finance and War. 

By Royal order of March 31, 1808 (Doc. No. 198), 
addressed to the Captain-General of Guatemala in re- 
ply to his communications of January 3 and June 18, 



151 

1805, it was provided that the San Juan river of Nica- 
ragua should remain open to navigation and con^merce ; 
that, in order to promote the clearing and cultivation 
of the immediate lands the same favors were granted 
to their inhabitants that were conceded to the new 
settlers of the Mosquito Coast by the Royal order of 
November 20, 1803 (a different order from that of the | 
same date which is invoked by Colombia (Doc. No. 
474) ; that, for a period of ten years there was to be 
exemption from duties and tithes on the products that 
might be har\''ested within a distance of ten leagues 
from the river, on either bank thereof; and that the 
establishment of a settlement should be undertaken 
near the said San Juan de Nicaragua river. Those ten 
leagues of the coast to the north lay in what was called 
the Mosquito Coast ; and the ten on the south belonged 
to Costa Rica. This Royal order of 1808 proves, there- 
fore, that the jurisdiction of the Captaincy-General of 
Guatemala continued upon the Mosquito Coast, at the 
mouth of the San Juan river, and also in Costa Rica, 
and that the Royal order of 1803, did not operate 
against this jurisdiction. 

The Valley and Coast of Matina, which Colombia^ 
claims as embraced within the Mosquito Coast, con- 
tinued under the command of the Governor of the 
Province of Costa Rica, as is shown by several orders 
which its governor, at that time Don Tomas de Acosta, 
gave to the Judge and Comandante of Matina, and the 
communications of this Governor to the Captain-Gen- 
eral of Guatemala concerning matters in that district 
(1808 and 1809). The official communication of Don 
Tomas de Acosta to said captain-general, of Septem- 
ber 20, 1809 (Doc. No. 199), merits special attention. 
In that communication he gives an account of the let- 



152 

ter which the Governor of the Island of San Andres 
had written to Mm, telling him that the Government of 
Matina belonged to that of San Andres, by reason of 
its command of the coast from Cape Gracias a Dios as 
far as the Chagres river ; against this Acosta protested, 
on the ground that it was contrary to immemorial tra- 
dition, and he ended by stating to the Captain-General 
as follows : 

"In this Government the Royal Orders of 1803 
and 1807 which O'Neille cites do not exist; 
wherefore and perhaps because he has not given 
to them the proper understanding, / will cofi- 
tinue without change in the command of this 
province and its coasts, until Your Worship may 
Otherwise provide or consult His Majesty ia 
order to avoid disputes. ' ' 

On November 7, 1809, the Captain-General of Guate- 
mala, replied to the Governor of Costa Rica stating 
that the Governor of the Island of San Andres had no 
authority whatever over the Coast of Matina (Doc. 
Nos. 200 and 201). 

The Cortes of Cadiz, on the petition of the Deputy 
for Costa Rica, Don Florencio del Castilla, without op- 
position by the representatives of the Viceroyalty of 
Sante Fe, and after the Council of the Regency had 
been heard, resolved by decree of December 1, 1811 
(Doc. No. 204), that the Port of Matina should be 
opened, and exemption from duties on exports granted 
for ten years. The Captain-General of Guatemala re 
ferred the decree to the Governor of Costa Rica, on 
May 25, 1812, because of the fact that the Port of 
Matina was under his jurisdiction, and the latter gov- 
ernor replied, on July 1st, that he was fully advised of 



153 

this sovereign provision for its execution (Doc. No. 
208). 

To summarize; neither the Mosquito Coast, nor the 
coastal portion of the Province of Costa Rica, passed 
to the Viceroyalty of Santa Fe, but continued as a de- 
pendency of the Captaincy-General and Audiencia of 
Guatemala in the Viceroyalty of New Spain. The only 
effect produced by the Royal order of November 20, 
1803, was the creation of the government of O'Neille 
which was confined to the Islands of San Andres. Those 
islands having been the subject of continuous dispute 
between the Spanish and the English, were left to Spain 
until the struggles for independence. In 1818 a band of 
pirates commanded by Captain Louis Aury, took pos- 
session of them and held absolute sway for three years ; 
and in 1822 Colombia occupied them, not by rights de- 
rived from the Spanish Colonial regime, but by having 
driven off the pirates. The dependency of the islands 
could not affect, and did not affect, the Province of 
Costa Rica. 

m. 

LAST YEARS OF SPANISH SOVEREIGNTY. 
1. First Period of the Constitutional Regime in Spain. 

(a) General Organic Provisions. 

Spain being under invasion, in 1808, by the troops 
of Napoleon, and Fernando VII absent from the coun- 
try, the Supreme Central Junta governed in the Pen- 
insula and in America, and recognized the existence 
of the Province of Costa Rica. This is shown by the 
summons for the election of deputies in 1809, in which 



154 

that province took part (electing for the extraordinary 
Cortes, Don Florencio del Castillo) and by the appoint- 
ment of Don Juan de Dios de Ayala as governor of 
that province in 1810. 

America had a numerous and brilliant representa- 
tion in the Cortes of Cadiz which established the con- 
stitutional regime in Spain; indeed, several of its 
Deputies — among them the same Don Florencio del 
Castillo — were elevated to the Chairmanship in recog- 
nition of their merit, and out of respect for America 
whose provinces were always looked upon by the Cor- 
tes as sisters of those of the Peninsula and subsisting 
under a common politico-administrative system. 

By the side of Don Florencio del Castillo, Deputy 
for Costa Rica, were the representatives of Guatemala, 
Nicaragua, Panama and New Granada — Larrazabal, 
Lopez de la Plata, Ortiz, Mexia Lequerica and Count 
of Punonrostro; and when we see that every one as- 
sented to the declarations made and the resolutions 
passed in that body with respect to Costa Rica, we 
may safely assume that they responded to the actual 
facts and to the conveniences of the provinces inter- 
ested. The Deputy for Panama, Don Jose Joaquin 
Ortiz, went farther. In his statement to the Cortes, 
on April 28, 1812 (Doc. No. 475), he confirmed the his- 
torical boundaries between Costa Rica and Panama, 
saying : 

**That important Isthmus (of Panama) has, 
from the village of Chepo, which borders on the 
country of the wild Indians of Darien, as far as 
the village of Boqueron, in the jurisdiction of 
Chiriqui, which borders upon the Kingdom of 
Guatemala, a length of 118 leagues. * * *" 



155 

The Constitution of Cadiz, of 1812, in its Art. 10 
(Doc. No. 205), maintained the separation of Guate- 
mala (which it expressly mentioned) and New Grranadn 
(Sante Fe), and preserved the territorial division ex- 
isting in the Spanish dominions, until another more 
convenient division should be made by means of a 
constitutional law, as declared in Art. 11 (Doc. No. 
205). 

After the Constitution had been adopted the repre 
sentative Cortes passed two important decrees of a 
legislative character ; one relating to judicial organiza- 
tion and the other concerning provincial government 

The Decree of October 9, 1812 (Doc. No. 210) pro- 
vided in Art. 1 that until a new division of the territory 
should be made there would be an audiencia in each 
of the provinces that then had one, and mentioned a3 
still subsisting, the Audiencias of Guatemala and Santa 
Fe; it declared in Art. 2 that those audiencias should 
retain the territory they then had, and the same resi- 
dential seat. The Province of Costa Rica continued, 
then, to belong to the Audiencia of Guatemala, and 
preserved the same eastern boundaries, which were 
the boundaries of that audiencia with that of Santa Fe. 

The Decree of May 23, 1812 (Doc. No. 207), estab 
lished a new provincial regime, and created the su- 
perior political chiefs of the provinces and the pro 
vincial deputations, as provided for in the Constitu- 
tion. In pursuance of that decree there was to be a 
provincial deputation in each of the provinces espe- 
cially mentioned in Art. 10 of the Constitution and 
therefore in Guatemala; but in Guatemala the decree 
provided, there was to be another, to be established in 
Leon de Nicaragua **with the Province of Costa Rica." 



156 

This provincial deputation was called that of Nica- 
ragua and Costa Rica. 

(b) Continuation of the Dependency of the Northern 
Coast of Costa Rica Upon the Government of That 
Province. 

Although in the light of such provisions of a gen- 
eral organic character, it clearly follows that the Prov- 
ince of Costa Eica in no way depended upon Santa Fe 
or New Granada, we shall have to insist, as regards this 
northern coast (which Colombia pretends to consider 
as embraced in the Mosquito Coast), upon adding more 
proofs of the inefficacy and abrogation of the Royal 
order of San Lorenzo, of November 20, 1803. 

We have already shown how the extraordinary Cor- 
tes, at the petition of Don Florencio del Castillo, 
Deputy for Costa Rica, decreed the opening of the 
Port of Matina, belonging to that province, on Decem- 
ber 1, 1811, and how its governor, Don Juan de Dios de 
Ayala, by order of the Captain-General of Guatemala, 
stood ready to carry that decree into effect. 

The governor continued to act in connection with 
the Captain-General of Guatemala in everything that 
related to Matina, as shown by his communications of 
August 5, and October 5, 1813 (Doc. Nos. 212 and 213). 

The Provincial Deputation of Nicaragua {having 
been charged with making the provincial division of 
districts, resolved, as its secretary certifies, to propost> 
the creation of two political sub-chiefs; of these, ac- 
cording to the official communication of its president of 
April 27, 1814 (Doc. No. 214), to the Minister of 
Ultramar (Affairs Beyond the Seas), one was to be 
assigned to Granada, where the vessels unload which 



157 

arrive at the port of the San Juan river, on one of 
whose banks it was suggested to locate a settlement of 
300 families — and the other in Cartago, capital of the 
Province of Costa Rica, because of its extent * * * 
^*and because upon its coasts, it has the ports of Punta 
de Arenas on the South and Matina on the North." 
This resolution demonstrates that the Mosquito Coast 
continued under the jurisdiction of Nicaragua, and the 
coast of Matina under that of Costa Rica, and that the 
establishment of settlements on the San Juan river, re 
f erred to in the Royal order of March 31, 1808 (Doc. 
No. 198), proceeded in due course. 

By Decree of April 29, 1814 (Doc. No. 215), the 
Cortes resolved to open the port of Punta de Arenas, 
located to the south "of the Province of Costa Rica.** 

(c) Description of the Province of Costa Rica in the 
Proposal Made by Its Deputy in the Cortes For the 
Creation of a Bishopric. 

In the session of the Cortes of May 31, 1813, pre- 
sided over by Don Florencio del Castillo, Deputy for 
Costa Rica, the proposal of the latter relating to the 
creation of a Bishopric of that name was read ; it 
begins as follows: 

''In the Committee on Affairs Beyond the 
Seas there is a Memorial from the Noble Mu- 
nicipal Council of the city of Cartago, capital 
of Costa Rica, which asks for the separation of 
the said province from the Bishopric of Leon 
de Nicaragua to which it is now added, to the 
end that a separate diocese being created in 
Costa Rica, there shall be erected and estab- 
lished an Episcopal See in the aforesaid city of 
Cartago." 



158 

In presenting its arguments, the petition describes 
the province in general, as follows : 

"Costa Rica has for the boundaries of its 
territory the River Chiriqui, which separates it 
from the Province of Panama, and the River 
Salto, which divides it from that of Nicaragua, 
between which two provinces it is located. It 
has for its boundaries on the North and the 
South the Atlantic Ocean and the Pacific Ocean. 
From one of the rivers that are designated to 
the other, it is more than 150 leagues, by very 
rough roads and almost impassable on accounl 
of the multitude of mountains and the large 
rivers that must be crossed. The distance from 
one sea to the other is not uniform, but the av- 
erage is about 70 leagues." 

The petition goes on to speak of settlements in that 
province of the number of races among its inhabitants, 
and sums up by saying : 

! 
**For these reasons Costa Rica was always 
considered and held since its discovery as a 
province separate and independent from the 
others ; governed in political and military affairs 
by a chief with the title of Governor and Com 
andante de las Armas, who recognized no other 
dependency than upon the Audiencia and Cap- 
taincy-General of Guatemala; so that it is only 
in ecclesiastical matters that it has been added 
to the diocese of Nicaragua." 

It is impossible to describe in a more concrete and 
positive manner the status of the Province of Costa 
Rica in 1813 ; and that status conforms perfectly with 
the status which, according to the evidence adduced 
from the great mass of oflBcial documents we have 
cited, always subsisted. 



159 
2. Absolute Government of Fernando VII. 

Fernando VII on his return to Spain, in 1814, after 
the evacuation of the Peninsula by the French, an- 
nulled all the acts of the constitutional regime, and re- 
established the absolute government that had pre- 
viously existed. 

He left Don Juan de Dios de Ayala as Governor of 
the Province of Costa Rica, and, in 1818, appointed to 
that ofifice, Don Bernardo Vallarino. On the death of 
the latter, the Audiencia of Guatemala filled the office 
temporarily, by the appointment of Don Juan Manuel 
de Canas. 

The Governor of Costa Rica continued in authority 
on the coast and at the Port of Matina, keeping in com- 
munication with the Captain-General of Guatemala, as 
may be seen by various official communications from 
1815 to 1819 (Doc. Nos. 218, 219, 200, 225, 226, 227 and 
229). By Royal cedula of May 26, 1818 (Doc. No. 228), 
addressed to the Captain- General of Guatemala, the 
King commanded a report to be made in regard to the 
amendment of the impost upon cacao derived from the 
Valley of Matina. 

The territory of Talamanca continued to belong to 
the Province of Costa Rica, as shown by the account 
given by Fray Ramon Roxas, Comisario prefecto of 
the Missions, to the Bishop of Nicaragua, dated July 
3, 1815 (Doc. No. 217) ; in this he tells the Bishop that 
*'* * * the reduction of Talamanca is upon the 
borders of this diocese, on the side adjacent to that ol 
Panama," and relates how the governors of Costa 
Rica protect the missions of Talamanca. 

Although the Cortes was dissolved, Fernando VII 
by Royal order of June 17, 1814, exhorted those who 



160 

had been deputies of tlie American provinces, to sub- 
mit to him the petitions that they had pending, and any- 
other matters pertaining to their respective provinces. 
This was done by Don Florencio del Castillo, ex 
Deputy for Costa Eica, in his statement to the King of 
Jnly 12 of the same year (Doc. No. 216), in which he 
reproduces what he had presented to the Cortes on 
May 31, 1813, repeating the paragraphs that we have 
transcribed regarding the limits of Costa Rica and 
insisting that it had always been a province separate 
from the rest, ruled by a governor dependent solely 
upon the Captaincy-General and Audiencia of Gua- 
temala. 

By Royal cedula of May 26, 1818 (Doc. No. 228), in 
accord with the Council of the Indies, Fernando VII 
commanded the Captaincy-General of Guatemala to 
report concerning the proposal of Don Florencio del 
Castillo respecting the creation of a Bishopric of Costa 
Rica, and took counsel with the Intendant and the 
Bishop of Nicaragua, the Fiscal (Attorney General) 
and the Audiencia of Guatemala, in order to determine 
what was best to be done. 

3. Second Constitutional Period. 

The Constitution of Cadiz was re-established in 1820, 
and wdth it the Provincial Deputation of Nicaragua 
and Costa Rica; whereupon that deputation on De- 
cember 13, 1820 (Doc. No. 476), again took up the 
proposition for the division by districts (enumerating 
the principal places of each) and the creation of po- 
litical sub-chiefs. In the note accompan5ring the com- 
munication concerning those matters addressed to the 
Minister of Affairs Beyond the Seas, it is shown that 

i 



161 

the Province of Costa Rica was under the charge of a 
political and military governor independent of the 
Governor of Nicaragua, save in the matter of Hacienda 
(Finances), of which a sub-iatendant had charge under 
the Ordinance of 1786, and he depended upon the In- 
tendancy- General of Nicaragua. By Royal order of 
February 27, 1822, it was directed that this plan be 
forwarded to the Minister of the Interior for investi- 
gation. 

In the session of the Cortes of May 17, 1821, Don 
Jose Mariano Mendez, Deputy for one of the Guate- 
mala districts, presented a memorial of which he was 
the author, entitled, '* Memorial of the Political and 
Ecclesiastical Condition of the Captaincy-General of 
Guatemala, a Plan for the Division into Eight Prov- 
inces, With as Many More Provincial Deputies, Politi- 
cal Chiefs, Intendants and Bishops," which memorial, 
according to the records, was favorably received by 
the Cortes and referred to the Committees on Pro- 
vincial Deputations, Ecclesiastical Affairs and Finance. 

This very interesting memorial (Doc. No. 230) be- 
gins by saying : 

''Guatemala, situated in Northern America, 
longitude from 282 degrees to 295 degrees, and 
latitude from 8 degrees to 17 degrees, has a 
length of 13 degrees, which makes 227 Castilian 
leagues of 17y2 to the degree ; and by road it is 
calculated at more than 700 leagues from Chi 
lillo, the end bordering with the Audiencia of J>^ 
Mexico, as far as Chiriqui, the frontier line of 
the jurisdiction of the Audiencia of Santa F-3 
de Bogota. In width it is 9 degrees, from the 
southern territories of Costa Rica to the north- 
ern ones of Chiapa. * * * jt borders on the 
West with the Intendancy of Guaxaca; on the 



162 

East with the Province of Veragua, district of 
Tierra Firme and Santa Fe ; on the North with 
the Ocean and on the South with the Pacific. ' ' 

It then goes on to explain that 

"* * * throughout the extent of this 
Kingdom there is but one Audiencia, which sits 
in the capital of Guatemala, with its Captain 
General, who has a large number of subordinat-^ 
chiefs for the political and military administra- 
tion and Government of the fifteen provinces 
into which it is divided. " 

This number is made up of eight alcadias mayores, 
two Gorregimientos, the Government of Costa Rica and 
the Intendancies of Nicaragua, Chiapa, Comayagua de 
Honduras and San Salvador. 

It indicates the inconveniences of this division and 
suggests that eight provinces be created, each with its 
respective civil and ecclesiastical authorities. 

Of the Province of Costa Rica — the first of the 
eight — he speaks as follows : 

''This city (of Cartago) is the capital of the 
province of Costa Rica, situated in the center, 
at 80 leagues from the frontier line of Nicaragua 
and as many more from that of Costa Firme, 
jurisdiction of Veragua, and at thirty leagues 
from the Port of Esparza on the South Sea, and 
at a like distance from that of Matina, on the 
Nortli Sea ; so that the total length is 160 leagues 
and the width 60. * * * In 1813, its Dep- 
uty in the Cortes endeavored to have it erected 
into a Bishopric * * * and this same effort 
was repeated in the present Cortes, asking for a 
Provincial Deputation * * * ; its better ad- 
ministration and government can only be at- 



163 

tained by means of a Provincial Deputation, 
Political Chief, Intendant, University, College 
and Bishop without canons." 

IV. 

THE INDEPENDENCE AND THE "UTI POSSI- 
DETIS." 

1. Independence of the Provinces of Guatemala and 
New Granada. 

During this second constitutional period, Costa Rica 
was emancipated from the sovereignty of Spain. 

The news of the Spanish revolutionaiy movement of 
1820, revived the insurrection of Mexico which had 
been suppressed; General Iturbide placed himself at 
its head and on February 24, 1821, put forth the mani- 
festo of Iguala (Doc. No. 243), proclaiming the inde- 
pendence of Mexico. Following this example, Guate- 
mala also declared itself independent of Spain, in Sep- 
tember, and Costa Rica, in October, of the same year 
(the governor then being Don Manuel de Caiias).. 

General Itiirbide caused himself to be proclaimed 
Emperor of Mexico, with the name of Augustin I, in 
May, 1822. The provinces of the old Captaincy-Gen- 
eral of Guatemala joined the new Mexican Empire; 
but on the dissolution of the latter, in March, 1823, 
they united and sent representatives to a constituent 
assembly which, in July of that year, ratified their 
independence from both Spain and Mexico. That as- 
sembly adopted the Constitution of the United Prov- 
inces of the Center of America, of November 22, 1824 
(Doe. No. 254), thus forming a republican confedera 



164 

tion composed of five States: Guatemala, Salvador, 
Honduras, Nicaragua and Costa Rica, each of which 
had its own constitution. 

This confederation lasted for fourteen years, until 
the federal compact, having been broken by the con- 
gress of 1838, there were born the five republics that 
now bear those names, each with an entirely inde- 
pendent life. 

The insurrectionary movement of the provinces of 
the Viceroyalty of New Granada was distinct. It had 
its principal center in Santa Fe de Bogota which, in 
July, 1810, rose against the viceroy and attempted to 
form a confederation of those provinces. The move 
ment, however, failed of success until Bolivar, who had 
achieved the independence of Venezuela, placed him- 
self at its head. The Congress of Angostura (in Vene- 
zuela), of February 19, 1819, decreed the formation of 
the Republic of Colombia, with the provinces of Vene- 
zuela and New Granada. The Congress of Rosario de 
Cucuta approved the Constitution of this Republic on 
August 30, 1821. 

The Province of Panama, where the Viceroy, Sam- 
ano, was established, was proclaimed independent of 
Spain, in November, 1821, and agreed to cast in its 
lot with the Republic of Colombia. 

So, tliat, in November of 1821, the sovereignty of 
Sy)aiii ended in the two provinces of Costa Rica and 
Panama, bordering on the two viceroyalties and au- 
dieucias, each, on its emancipation, attaching itself to 
those provinces with which it had been united — Costa 
Rii'a with the Guatemala provinces; Panama with those 
of New Granada. 



165 

2. The Principle of Colonial **Uti Possidetis." 

^'Uti possidetis" was the term used in the Roman 
law to designate the interdict of retention of possession 
which the praetor pronounced, in the interest of the 
holder of property, to protect him in his possession 
80 long as he was not defeated in a trial of ownership, 
using a long phrase which was condensed into these 
words, "uti possidetis, ita possideatis;'* that is, **as 
ye possess, so may ye possess (so may ye continue 
possessing)." 

This term, "uti possidetis," having been adopted 
into international law, serves to designate the principle 
of *■ the conservation of the possessory status" in in- 
ternational relations. The principle of the "colonial 
uti possidetis" signifies the recognition of the posses- 
sory status in which the provinces or regions were 
found when they were colonies, and the continuity 
thereof after they had been emancipated and formed 
independent states. 

The importance of this principle may be easily un- 
derstood in the demarcation of the states that sprang 
into existence in America upon the cessation of Spain's 
sovereignty. Those states had no other history than 
that of the colonial period ; but during that period they 
had formed themselves into communities, with their 
own customs, traditions and social and administrative 
institutions that differentiated each from the others. 
It was but natural, therefore, that they should con- 
tinue to live as they had lived — ^in the same territories 
and undergoing no other change than that involved in 
the acquisition of sovereignty, or such changes as they 
might wish to establish in the exercise of such sov- 
ereignty. 



166 

All the territory of the Indies had been divided by 
the Sovereigns of Spain into viceroyalties, audiencias 
and governments of various classes, within the re- 
spective demarcations of which, those communities 
were formed, each with vast areas to be settled. The 
provinces emancipated themselves as best they could; 
those of one great circumscription united or passed 
voluntarily from one circumscription to another, or 
separated among themselves, and constituted them- 
selves into independent republics. When the common 
sovereign power was withdrawn, it became indispen- 
sably necessary to agree on a general principle of 
demarcation, since there was a universal desire to 
avoid the resort to force, and the principle adopted 
was the colonial uti possidetis; that is, the principle 
involving the preservation of the demarcations under 
the colonial regime corresponding to each of the co- 
lonial entities that was constituted as a state. Thus, 
also, it prevented the seizure by foreign nations of 
any of those vast unsettled territories. 

The principle of uti possidetis was introduced recip- 
rocally into the relations of the American republics of 
Spanish origin by the Treaty of Bogota, of 1811, en- 
tered into by the United Provinces of Venezuela and 
the United Provinces of New Granada ; in that instru 
ment they undertook to recognize and respect as the 
boundaries between those that pertained to the Cap- 
taincy-General and Viceroy alty bearing those names — 
a principle that was extended over the whole of Latin 
America. 

But if there was general accord in the acceptance of 
that principle, difficulties arose in its application, 
mainly concerning the character of the possessory 
status and the date to be taken, each republic insisting 



167 

upon what was most desirable for its own interests 
according to the situation in which it found itself. 

3. Application of the Principle. 

Further exposition of this doctrine of the uti possi- 
detis, which pertains to the international law of Latin 
America, is unnecessary, since we address ourselves, 
in this opinion, to the colonial Spanish law; still we 
set forth the situation of Costa Rica in order to apply 
that principle. 

The fundamental law of the State of Costa Rica, of 
January 21, 1825 (Doc. No. 255) expressed perfectly 
the equation between its territory and that of the 
Spanish province of that name; it fixed its limits in 
the same way that they existed in fact and law, at the 
moment when the sovereignty of Spain came to an end. 
In its Art. 15 the law provided: 

**The territory of the State is now extended 
from West to East, from the River Salto, which 
divides it from Nicaragua, to the River CJiiriqui, 
the end of the Republic of Colombia ; and North- 
South from one Sea to the other, its limits being 
on the North at the mouth of the River San 
Juan and the Escudo de Veragua, and on the 
South at the outlet of the River Alvarado and 
that of Chiriqui." 

The expression **now,*' used in connection with 
Nicaragua, was adopted because the addition of 
Nicoya was expected, that province having manifested 
its desire to unite with Costa Rica ; and it was in fact 
so united by decree of the Federal Congress of the 
Republic of Central America of December 9 of the 
same year (Doc. No. 258). 



168 

That fundamental law of Costa Bica harmonizes 
with the law of territorial division of the Republic of 
Colombia, of June 25, 1824 (Doc. No. 251), which had 
respected the limits of the former State. Colombia 
divided her territory into twelve departments, subdi- 
vided into provinces composed of cantons. The De- 
partment of the Isthmus was made up of two prov- 
inces: That of Panama and that of Veragua. The 
Province of Veragua was divided into four cantons — 
Santiago de Veragua, Mesa, Alanje and Guaimi. All 
these cantons were located to the east of Costa Rica, 
including that of Guaymi which was another portion 
of the valley of that name, and had for its capital, the 
town of Remedies. 

A few days after this law was published, the Gov- 
ernment of Colombia issued the Decree of July 5, 1824 
(Doc. No. 252), declaring illegal ''every enterprise 
which is undertaken to colonize any point of that por- 
tion of the Coast of Mosquitos from Cape Gracias a 
Dios, inclusive, toward the River Chagres, which be- 
longs to the Republic of Colombia, in virtue of the 
formal declaration made at San Lorenzo on November 
30, 1803. ' ' It was sought by this action to give life to 
the Royal order relating to the Government of the 
Islands of San Andres, which had died still-born and 
to which no one had paid any attention during the co- 
lonial period; the nullity and inefficacy of that Royal 
order with respect to Costa Rica we have already dem- 
onstrated. And it must be observed that it was not 
taken into consideration in making the law of terri- 
torial division which was prepared and sanctioned at 
that time. 

On March 15, 1825 (Doc. No. 257), was signed in 
Bogota the treaty between the Republic of Colombia 



169 

and the Federal Eepublic of Central America of which 
the State of Costa Eica formed a part, and by which 
the latter republic bordered on the former. The par- 
ties mutually guaranteed the integrity of their respect- 
ive territories "as they existed naturally prior to the 
present war of independence," and obligated them- 
selves to respect their boundaries "as they now exist;" 
they also agreed to the reservation, "as soon as cir- 
cumstances will permit, to settle in a friendly manner 
the line of demarcation between the two states, or 
whenever one of the parties shall be disposed to enter 
on this negotiation." 

In the conferences held during the negotiation of 
that Treaty of 1825 the Minister of Foreign Eelations of 
Colombia, Don Pedro Gual, proposed a change in the 
existing boundaries based on the proposition to give 
effect to the Eoyal order of 1803. The Minister Pleni- 
potentiary of Central America, Don Pedro Molina, 
replied that he was without instructions on this point. 
"Well, then, responded Senor Gual, as to boundaries . t ^a^-*-^^ 
it is necessary to hold to the uti possidetis of 1810, or 
1820, as may be desired. Senor Molina having acqui- 
esced, Senor Gual was charged with preparing the 
articles arranged at the time of making this project." 
It is thus set forth in the protocol of the conference be- 
tween the two representatives of March 4, 1825 (Doc. 
No. 256). 

From the foregoing it appears that both parties 
were agreed in recognizing, in 1824 and 1825 — three or 
four years after the independence — as the boundaries 
existing in fact between the Spanish Provinces of Costa 
Eica and Veragua at the moment of independence, the 
same boundaries which they promised to respect and 
mutually adhere to. The Colombian law of territorial 



yOi^ 



170 

division, of June 25, 1824, did not go beyond the bound- 
aries of Veragua; the fundamental law of Costa Rica 
of January 21, 1825, included from sea to sea, as far 
as the Escudo de Veragua and the Chiriqui {Vie jo) 
river ; and the Treaty of Bogota of May 15, 1825, pre- 
served the existing boundaries, without making the 
changes which the Minister of Colombia had claimed 
on the authority of the Royal order of 1803. 

The principle of uti possidetis, then, was accepted 
by common consent in the sense of preserving the pos- 
sessory status, Colombia declaring that whether the 
year 1810 or 1820 be adopted in connection with that 
status should be *'as it might be desired to understand 
it." This is easy enough to understand because the 
change proposed by Colombia not having been adopted, 
it was a matter of indifference which date should be 
selected, that possessory status being the same in both 
periods. 

But Colombia's ambition to extend herself into 
Central America, grew apace. Taking advantage, 
therefore, of the discord that prevailed among the 
States of the Federation, in 1836, she treated the ter- 
ritory of Bocas del Toro and all its islands as her own, 
and occupied them with force. To justify such ambi- 
tions and the acts that were committed in carrying 
them out, Colombia, resorted to the Royal order of 
San Lorenzo, of 1803, on the assumption that it con- 
stituted the uti possidetis de jure of 1810, and that 
under its sanction she was entitled to the dominion 
(which had pertained to the Viceroyalty of Sante Fe) 
over the Atlantic coast from Cape Gracias a Dios to- 
wards the Chagres river, including the Matina Coast. 

Colombia, therefore, interpreted the principle of 
uti possidetis in the sense of the preservation of the 



171 

right of ownership instead of that of possession; 
whereas, the fact is that that principle, as its name 
indicates, and in consonance with the interdict from 
which it is derived requires as an indispensable condi- 
tion *'the fact of being in possession." The right to 
property, unaccompanied by possession, may be ground 
for recovery, but never for the interdict of retention 
or the right to preserve possession that is lacking. 

The Eepublic of Colombia, by combatting the inter- 
pretation of the uti possidetis in the sense of preserva- 
tion of the possessory condition de facto, and alleging 
in favor of herself rights of ownership founded upon 
laws and Royal orders, recognizes that the Viceroyalty 
of Santa Fe had not been in possession of the territo- 
ries! which she has claimed as its heir. 

Colombia asks in the arbitration that the question 
of boundaries with Costa Rica be decided by the prin- 
ciple of uti possidetis de jure, asserting in her docu- 
ments that according to the Recopilacion de Indias the 
Government of Costa Rica must have belonged to that 
of Tierra Firme, by having been embraced within the 
Province of Veragua, which belonged to Tierra Firme, 
and that under the Royal order of 1803, the Govern- 
ment of the Mosquito Coast and that of the Atlantic 
coast of Costa Rica must have belonged to the Vice- 
royalty of Sante Fe. But she does not say that the 
Government of Tierra Firme had jurisdiction over 
Costa Rica subsequently to the creation of the Audi- 
encia of the Confines, or of Guatemala, nor did the 
Viceroyalty of Santa Fe exercise even partial control 
therein ; and she could not state this, since it is entirely 
contrary to the truth of history. 

The territory and boundaries possessed by Costa 
Rica at the moment of her emancipation, she held by 



172 

virtue of legal titles, having been definitively consti- 
tuted by her historic evolution as a province, and hav- 
ing lived continuously under that legal status sanc- 
tioned and confirmed by a long series of acts of juris- 
diction and sovereignty. 

That is why Costa Rica, although she understands 
that the uti possidetis cannot be conceived without 
possession, has accepted in this arbitration the so- 
called uti possidetis de jure, because she has in her 
favor the uti possidetis not only de jure, but de facto. 
The description of its territory, which the State of 
Costa Eica gave in Art. 15 of its fundamental law of 
January 21, 1825, accords with the descriptions we 
have given of the territory embraced therein in fact 
and law, when it was a Spanish province, to wit, from 
sea to sea, from Nicaragua to the Escudo de Veragua 
on the north and the mouth of the Chiriqui ( Vie jo ) on 
the south. Such was it possessory status when, on 
the 15th of March of the same year, in Bogota the 
treaty was signed by the Republic of Colombia and 
the Federal Republic of Central America; in that 
treaty the boundaries that ''then existed" were recog- 
nized, and the parties mutually guaranteed their re- 
spective territories. 

Colombia claims that the uti possidetis of all Spanish 
America refers to the year 1810, because it was then 
that the insurrectionary movement began which led to 
the Treaty of 1811. In that treaty the provinces of 
Venezuela and those of New Granada undertook to 
recognize and to respect as boundaries between them- 
selves those belonging to the captaincy-general and 
viceroyalty. But the principle of uti possidetis hav- 
ing been proclaimed to enable the new states to accept 
as boundaries those which their respective provinces 



173 

had possessed when they were emancipated and thus 
establish the continuity of possession, it could not be 
applied to all as of the same date, but as of the date of 
the emancipation of each province or region which 
became a state, for until their emancipation they con- 
tinued under the sovereignty of Spain who could freely 
dispose of them. 

The insurrectionary movement of 1810 was repressed 
by Spain, and this same Republic of Colombia was not 
born until December, 1819, nor was she definitively con- 
stituted as a sovereign state until August, 1821. The 
Province of Guatemala proclaimed itself independent 
on September 15, 1821 ; those of Costa Eica and Pan 
ama, in October and November of the same year. 
Therefore, if a common date be adopted for the uti 
possidetis of the provinces that figure in the question, 
of boundaries, it must be the year 1821. 

Costa Rica very properly insists on the uti posside- 
tis of 1821, although she would be under no disadvan- 
tage were that of 1810 adopted, for her possessory 
status as to boundaries was in fact and law, the same 
in one year as in the other. 

RESUME AND CONCLUSIONS. 

Summary. 

1. Resume and General Conclusions of This Opinion. 

2. Agreement Respecting the Legal Bases For the 

Determination of the Case. 

3. Question of Territoriality. 

4. Question of Delimitation : 

(a) Costa Rica's Evidence. 

(b) Colombia's Evidence. 






174 

(c) Special Consideration of the Boundaries of 
the Dukedom of Veragua. 
5. Final Deductions. 

1. Eesume and General Conclusions of This Opinion. 

We believe that we have demonstrated the three fol- 
lowing propositions, which constitute the three parts 
into which we have divided this work : 

1. The Province of Costa Eica and that of Veragua 
were definitively established and marked out by the 
Crown in the XVIth Century, in the year 1537. 

2. The Recopilacion de Indias respected and con- 
firmed the existence and demarcation of Costa Rica. 

3. Costa Rica continued in the same legal status of 
differentiation from Veragua, from the publication of 
the Recopilacion down to the independence. 

These propositions are the synthetic resume and the 
general conclusions of our opinion. 

The clearness with which we think we have presented 
the facts and the law relating to each of these proposi- 
tions, by means of the appropriate headings and sum- 
maries, as also the categorical form used in the state- 
ment of our opinion upon each of the questions em- 
braced in each proposition, renders unnecessary a 
fuller resume or a more extensive statement of the 
conclusions of this opinion; we respectfully refer to 
the discussions of the points in the text. 

We shall, however, state our conclusions as to the 
results of the arguments made in the arbitral pro- 
ceedings on the three questions following, which are 
the very essence of the case — the legal basis for its 
detemiination, territoriality and the boundaries prop- 
erly so-called. 



175 

2. Agreement Respecting the Legal Bases For the 
Determination of the Case. 

We have just seen that both parties are agreed in 
accepting, as the legal basis for the determination of 
the case, the principle of the colonial uti possidetis, 
as of the year 1810, although Costa Rica holds, as do 
we, that it ought to apply to the year 1821. And we 
have also seen that Costa Rica finds no difficulty in 
admitting the application of this principle from the 
point of view of law {de jure), but it must be jointly 
with the fact of possession {de facto) ; for we consider 
that without possession the uti possidetis is incon- 
ceivable. Both parties are also agreed in recognizing 
as a legal basis what was provided by the Recopilacion 
de Indias and the Crown of Spain in the exercise of 
the legislative power. ' The difference of opinions 
consists in the fact that Colombia denies legal force 
to the demarcatory provisions prior to the Recopila- 
cion, conceding it to others which are subsequent, 
whilst Costa Rica maintains the contrary, according 
to the character of the acts under discussion. 

In our opinion the Recopilacion de Indias is really 
the axis of the jurisprudence with which we are con- 
cerned. The history of Spanish colonial law is di- 
vided into three periods : The law prior to the Recopi- 
lacion, that established by the Recopilacion and that 
siibKoqiioiit thereto. And to these three periods of 
that history" we have made the three parts of our opin- 
ion correspond. Of the law prior to the Recopilacion, 
not only that which, as Colombia assumes, is expressly 
re-enacted, is valid, but also that which is respected, 
confirmed or admitted as supplementary. Of the laws 
provided after the Recopilacion only those are valid 



176 

which conform to the laws in that compilation, or their 
amendments, under the conditions and procedure es- 
tablished by it. 

3. Question of Territoriality. 

The legal criterion under which the case must be 
decided having been established, it is important to 
distinguish two questions which have been confused 
under the common designation of "question of bounda- 
ries:" That of territoriality and of delimitation; that 
is to say, the question of ownership of a determined 
territory (a geographical, political or administrative 
unit), and that of the marking out of the divisional line 
which separates it from another or several other ter- 
ritories. 

It clearly results from the argument in the arbitral 
proceedings, that Colombia does not treat the question 
of boundaries properly speaking, but that of territo- 
riality. Colombia denies the territoriality of Costr. 
Eica: first, entirely, on the authority of the Recopila- 
cion de Indias; and afterwards, partially, invoking the 
Royal order of 1803. In order to deny it entirely, she 
makes use of a geographical equivoque based upon the 
name of Veragua by taking for the "Province of Ver 
agua" the primitive Veragua. In order to deny that 
territoriality partially, she gives to the Mosquito Coast 
an extent it did not have. 

We cannot reconcile this method of attack to a pro- 
ceeding international in character, except on the theory 
that it is resorted to in pursuance of the time-worn 
maneuver of asking for ever5i;hing in order to obtain 
something ; for, were Colombia to succeed in producing 
the conviction that all the territory of the State of 



177 

Costa Rica ought to be adjudicated to her by virtue 
of old colonial rights, the Arbitrator could not, in de- 
termining a conflict of boundaries annul or almost 
annul the existence of a State which had been formed 
by the sovereignty of an emancipated people, which 
has been recognized in the integrity of its territory 
by the other State, and which voluntarily, in its own 
personality, has agreed with that other State upon an 
arbitration which is to the tracing of a divisionary 
line between their respective territories. 

It was fully proved in the arbitral proceeding that 
from the primitive Veragua were formed three dis- 
tinct provinces : the Province of Veragua (the only one 
that retained that name), constituted as such in 1560, 
with its governor and captain-general and having for 
its domain the territory of the Dukedom of Veragua; 
the Province of Costa Rica which began by embracing 
the whole of Royal Veragua, formed by virtue of the 
commission granted by Philip II to Cavallon, in 1561, 
and instituted as such province with its governor, 
captain-general, in 1565, and definitively organized by 
means of the Government of Artieda, in 1573-1574, 
upon the segregation of the territory situated to the 
north of the Desaguadero or San Juan river, and the 
Province of Teguzgalpa which was created, in 1576, 
out of the segregated territory that was called later 
the Mosquito Coast. 

It has been also demonstrated that the Province of 
Costa Rica and that of Veragua existed as distinct 
provinces, with their respective territories and with 
different governors, from the time of their defi.nitive 
constitution until the termination of the colonial pe- 
riod; and, furthermore, that each depended upon a 
different superior government — the Province of Costa 



178 

Rica upon the Viceroyalty of Mexico and Captaincy - 
General and Audiencia of Guatemala and the Province 
of Veragua upon the Viceroyalties of Peru and New 
Granada and Audiencias of Panama and Santa Fe. 

The Recopilacion de Indias, far from suppressing 
the Province of Costa Rica, as Colombia pretends, con- 
firmed its existence and mentioned it expressly as a 
distinct province from that of Veragua. The Province 
of Veragua, which the Recopilacion declares is em- 
braced in the Government of Tierra Firme, was the 
one that sprang from the dukedom; whereas, that of 
Costa Rica continued dependent upon the Audiencia of 
Guatemala, as it is also expressly provided in that 
code. 

Colombia contradicts her own argument of the legal 
non-existence of the Province of Costa Rica, when she 
alleges that the Royal order of San Lorenzo, of No- 
vember 20, 1803, segregated from the Superior Gov- 
ernment of Guatemala the Atlantic part of Costa Rica 
as embraced in the Mosquito Coast, in order to add it 
to the Viceroyalty of Santa Fe; for this is equivalent 
to recognizing that Costa Rica legally existed without 
belonging to the Viceroyalty of Santa Fe, and that only 
that portion passed into dependency upon it, the rest 
remaining under the jurisdiction of Guatemala. 

It has been proved that the Royal order of 1803 did 
not refer to Costa Rica, since the latter did not form 
a part of the Mosquito Coast ; that the order had only 
a military and transitory character; that it could not 
change the laws of territorial division, and that it 
was inefficacious, contradicted and abrogated. 

The Spanish Province of Costa Rica, emancipated 
in 1821, brought to the Federal Republic of Central 
America (which it formed with the other provinces of 



179 

the Old Kingdom of Guatemala) the very same terri- 
tory that it had, in fact and in law, as such Spanish 
province, and with that same territory belonging to the 
State of Costa Rica, the Republic of Central America 
was recognized by the Colombian Government in the 
Treaty of 1825. 

4. Question of Delimitation, 

(a) Costa Rica's Evidence. 

The Republic of Costa Rica, as appears in Art. 2 
of the Convention of January 20, 1886, has claimed in 
the arbitration as the line dividing her territory from 
that of Colombia: on the Atlantic side, the line indi- 
cated by the Island of Escudo de Veragua and the 
Chiriqui (Calobebora) river, inclusive; and on the 
Pacific side, the Chiriqui Vie jo river, inclusive, to 
the east of Punta Burica. That line is the 
one fijxed by the fundamental law of the State of Costa 
Rica of January 21, 1825, and with which the Republic 
of Central America was recognized by Colombia in 
the Treaty of May 15 of the same year. And that 
same line is the one which separated the Province of 
Costa Rica from that of Veragua under the colonial 
regime, being also the divisionary line of the viceroyal- 
ties and the bordering audiencias. 

The legality of this delimitation is based upon Law 
1, title 1, book V, of the Recopilacion de Indias (Doc. 
No. 131) ; in that law, enacted by Carlos II when that 
code was published, it was ordered that the viceroys, 
audiencias, governors and alcaldes mayores should 
keep and respect the boundaries of their jurisdictions 
"as they may be fixed by the Laws of this book, the 
Titles of their offices, the Provisions of the Superior 



180 

Government of the Province, or by use and custom 
legitimately introduced. ' ' 

The Republic of Costa Rica has fully proved in the 
litigation that from the demarcation of the province 
of that name, made in Artieda 's capitulacion of 1573, 
and his title of governor, granted in 1574, the boun- 
daries of that province were the line of the Island of 
the Escudo de Veragua and that of the Chiriqui 
(Calobebora) river, on the Atlantic side, and the 
Chiriqui Viejo river (or rather, the Valleys of the 
Chiriqui, inclusive), on the Pacific side, and therefore 
existed at the time of the publication of the Recopila- 
cion de Indias, as shown by the acts of sovereignty 
exercised by the monarchs, the titles of the offices of 
the governors, the provisions of the superior govern- 
ment of the provinces, and the rights based on custom. 

The laws of the Recopilacion did not establish any 
different boundaries; and in respecting all the Royal 
cedulas which were not in contradiction therewith, the 
Royal cedulas demarcatory of boundaries remained in 
force without denying efficacy to the capitulaciones, 
the validity of which was recognized in so far as they 
were not in contradiction with the laws of the Recopi- 
lacion, those capitulaciones being considered, taken to- 
gether, as a system .governing discovery, settlement, 
pacification and government of the territories of the 
Indies. 

As a result of the creation of the Viceroyalty of New 
Granada, and the incorporation of the Audiencia of 
Panama in the Audiencia of Santa Fe, the proof of 
the boundaries of the Province of Costa Rica is 
strengthened with the descriptions of the boundaries 
of that viceroyalty and of the audiencia that reached 



181 

as far as that province, harmonizing with all the ante- 
cedents from the demarcation assigned to Artieda. 

This is shown from the ''Description of the King- 
dom of Tierra Firme," by the Comandante general of 
Panama, Don Antonio Guill, in 1760; from the "De- 
scription of the Viceroyalty of Santa Fe, ' ' by its Vice- 
roy, the Marquis de la Vega de Armijo, in 1772; from 
the "Eeport" by the Governor of Veragua, Don Felix 
Francisco Bejarano, in 1775; from the "Descriptions 
of the Viceroyalty of Santa Fe, of Tierra Firme and 
of Veragua," in the most interesting work relating 
to southern America, by the missionary, Sobreviela, 
in 1796, and by the "Official Communication" of the 
Governor of the Islands of San Andres, Don Tomas 
O'Neille, inl802. 

The boundaries of the Province of Costa Eica con- 
tinued unchanged in the last years of the Spanish sov- 
ereignty, for it has been shown by official documents 
that that province continued to embrace the territory 
from sea to sea, including the Matina Coast and the 
region of Talamanca, and that the Royal order of 1803 
produced no change whatever in the traditional de- 
marcation. 

Colombia recognized Costa Rica to be in possession 
of boundaries, the extreme points of which were the 
Island of the Escudo de Veragua and the mouth of 
the Chiriqui Viejo river, by the uti possidetis of the 
Treaty of 1825, and by the fact that, at the moment of 
the emancipation, she immediately set up against this 
uti possidetis de facto the uti possidetis de jure, as 
though Costa Rica possessed s»ch limits without au- 
thority of law. It has been demonstrated that Costa 
Rica has in her favor, not only the uti possidetis d& 



182 

facto, but the uti possidetis de jure, based upon the 
Recopilacion de Indias and the provisions which the 
latter respected or confirmed, or which were issued in 
accordance therewith. 

(5) Colombia's Evidence. 

The abundant proof submitted by the Republic of 
Costa Rica as to her boundaries presents a strong con- 
trast to the almost complete lack of evidence on the 
part of Colombia; because, as we have said, she does 
not occupy herself with the question properly of boun- 
daries, but with the territoriality. 

As appears in Art. 2 of the Convention of 1886, the 
Republic of Colombia has claimed in the arbitration, 
as her territorial limit : on the Atlantic side, as far as 
Cape Gracias a Dios, inclusive ; and on the Pacific side, 
to the mouth of the Golfito river in Dulce Gulf. 

To claim from Dulce Gulf in the Pacific to Cape 
Gracias a T>ios in the Atlantic, is not only equivalent 
to asking for all the territory included between the said 
Gulf, the Chiriqui Vie jo river, the Escudo de Veragua 
and the Culebras river, but also for the whole Atlantic 
coast of Costa Rica and Nicaragua, and Colombia ex- 
posed herself, besides, when attempting to unite the 
two extreme points of her claim, to invade Costa Rican 
territories not included in the boundary dispute, as she 
effectively did in the demand presented to the French 
Arbitrator. It is true that Colombia has left out the 
rights of third parties, and therefore of Nicaragua, 
stopping at the Desaguadero, or San Juan river, the 
boundary between Nicaragua and Costa Rica. But in 
her eagerness to justify her right as far as Cape Gra- 
cias a Dios or the Desaguadero, she has failed to prove 



183 

her boundaries with Costa Rica, by creating herself 
mistress of the whole of primitive Veragua. 

When Colombia invokes the Royal ' order of San 
Lorenzo of 1803, to maintain her point that the At- 
lantic portion of Costa Rica had bieen incorporated 
to the Viceroyalty of Santa Fe — whereby she recog- 
nized that the portion on the Pacific side continued 
separated from that viceroyalty — it would seem that 
she was under obligation to fix the divisionary line 
between one portion and the other, but she never has 
done so, forgetting doubtless, that this Royal order did 
not establish such divisionary line, because not demar 
catory of boundaries. 

So that Colombia has been left in this arbitral pro- 
ceeding in the same situation as would be the owner of 
a piece of property who, in litigating with an adjoin- 
ing owner, refused to prove the divisionary line be- 
tween two properties, on the ground that both belonged 
to him ; and the Arbitrator will be found in the situa- 
tion in which the judge would be left, who, holding the X 
ownerships to be distinct, and unable to recast them 
into a single one, had to mark out the properties 
in face of the fact that one of the holders had proved 
his divisionary line, whilst the other had not. 

A judge placed in such a position might perhaps be 
perplexed to decide a question of boundaries, properly 
speaking, through fear of being unduly inclined on the 
side of the one who presented the proof. But that fear 
cannot exist in the present case, for two reasons: (1) 
because Colombia has discussed the evidence of Costa 
Rica under conditions even more advantageous, since 
she presented a third brief and a summary of conclu- 
sions in the arbitral proceedings, of which brief and 
summary Costa Rica had no notice except by the Award 



184 

and was therefore imable to refute them; and (2) 
because Colombia, although she may not have made 
direct proof of her divisionary line, offered indirectly 
a most valuable proof in the very title which she al- 
leges as the basis of her rights and which may be used 
to take bearings from in order to decide with more 
assurance: we refer to the proof of the limits of the 
Dukedom of Veragua. 

(c) Special Consideration of the Boundaries of the 
Dukedom of Veragua. 

Those boundaries are established by the Royal 
cedula of Carlos V of March 2, 1537, which is cited 
by Law 9, title 1, book V, of the Recopilacion de Indias 
as a precedent for its text, in order to indicate, in our 
opinion, the origin of the Province of Veragua. 

Colombia maintains that when that law declared 
that the whole Province of Veragua should belong to 
the C>ov«rnment of Tierra Firme, it referred to the 
primitive Veragua, in which Costa Eica was embraced. 
Costa Rica aflBrms that the law referred to the Prov- 
ince of Veragua as it was constituted at the time of 
the publication of the Recopilacion de Indias, in 1680, 
and maintains that that province is the Dukedom of 
Veragua. And having proved that Panama cannot 
claim any other province of Veragua than the one 
arising out of the dukedom, she must resign herself to 
defending, as boundaries of this province, those which 
Colombia has recognized as limits of the dukedom by 
invoking the Royal cedula of 1537. 

According to that Royal cedula, the divisionary line 
between Panama and Costa Rica would be the straight 
Line from the west side of the square of 25 leagues, 



185 

opposed to that which might be traced npon the mer- 
idian of the Belen river (inclusive), embraced be- 
tween the parallels of the extremes and at a distance 
of 25 leagues. 

The meridian corresponding to the mouth of the 
Belen river, being that of 80° 51' west of Greenwich, 
and the mouth being on the parallel of 8° 54', that 
divisionary line, at the distance of 25 leagues, would be 
indicated by the meridian of 82° 6', starting from the 
same parallel in the southern direction, and counting 
by 20 leagues to the degree. If the league is counted 
at the rate of 261^ to the degree, that divisionary line 
would recede toward Panama, the leagues being 
smaller. If the league is counted at the rate of 17V2 
to the degree, the divisionary line would advance upon 
Costa Rica, the leagues being longer, in which case 
(and the most favorable one for Panama) the dukedom 
would not extend beyond the meridian of 82° 15' 42" 
west of Greenwich, starting from the same parallel of 
8' 54".^ 

Costa Rica, in designating the position of the mouth 
of the Belen river has made use of the most recent and 
exact maps of the English Admiralty Office, officially 
adopted by the Government of Panama, as may be seen 
even in the ''Map of the Republic of Panama, pre- 
pared by Don Ramon M. Valdes and Don Andres Vil- 
larreal for the text of the Geography adopted by the 
Government of Panama," and published after the 

* This point is resolved by an unquestionable document furnished by 
Panama itself. We refer to the "Mapa de la Repiiblica de Panama" 
published in 1910 by Don Ramon M. Valdes. On this map are very 
clearly traced the limits of the ancient Dukedom of Veragua and the 
divisional line with Costa Rica is indicated by the meridian 81° 58' 03" 
west of Greenwich, 



186 

Award of M. Loubet, and in which that point is fixed at 
80° 50' 40" from Greenwich. 

Against the rational geographic proof of Costa Rica 
on this point, Colombia alleged that this should not be 
the position of the Belen river because a settlement of 
that name appears much further to the west in a map 
drawn by Diego Ribero in 1529; but even this argu- 
ment becomes futile if the map of Diego Ribero, cited 
by Colombia is examined without prejudice and as it 
was found in the library of the Grand Duke of "Weimar. 
Ribera did not trace the Belen river, and in his map 
this name is applied to a place or vast area of water, 
which may well be estimated at 25 leagues to the east 
of Zorobaro, if there is taken into account the de- 
fective and diminutive scale of the Carta Universal 
(Universal Chart ).2 

And even though no map were in existence, that 
distance of 25 leagues from the Bay of Zorobaro, 
which results from the account of the voyage of Co- 
lumbus, and which the Council of the Indies must 
have taken into account in laying out the dukedom, 
would always be a very important factor. 

It is not our purpose to enter into a technical dis- 
cussion as to whether the Spanish leagues of the XVIth 
century were of 26i/^ to the degree, as Jorge Juan 
believed, or 17V2> as was maintained by the illustrious 
General of the Armada, Don Pelayo Alcala Galiano, in 
his *' Considerations Concerning Santa Cruz de Mar 
Pequena," of 1879, based among other data, on the 
fact that the league of Burgos was the one adopted in 
the Conferences of Badajoz concerning the demarca- 



"The learned commentary of J. G. Kohl upon the Carta Universal 
of Diego Ribero shows the error of Colombia, Vide : "The Two Old- 
est Maps of America, etc.," by J. G. Kohl, Weimar, 1860. 



187 

tion of the Spanish and Portuguese dominions in 1524, 
as pointed out by Humboldt. It is enough for us to 
repeat that even accepting the league of 17^ to the 
degree, the divisionary line of the dukedom would not 
penetrate into Costa Eica further than 82° 15' 42". 

Comparing now the divisionary line asked for by 
Costa Eica in the arbitration with that of the dukedom, 
the result is : that on the north side it goes beyond that 
of the dukedom, and reaches that of the Escudo de 
Veragua and of the Chiriqui or Calobebora river 
(meridian 81° 34' of longitude west of Greenwich) ; 
whilst on the south side, it does not reach the line of 
the dukedom, but remains at the mouth of the Chiriqui 
Viejo (meridian 82° 44'). The difference between the 
advance and the backward movement is divided equally 
by the meridian of 82° 9', which only differs by three 
minutes to the west from that corresponding to the 
line of the dukedom, counting the leagues at the rate 
of 20 to the degree. That is to say, that the advance 
is compensated by the retrogression. 

Whatever may be the divisionary meridian of the 
dukedom, Costa Eica enters into the Bay of Almirante 
or Lagoon of Chiriqui: on its western side, if the 
leagues are counted at the rate of 17i/^ to the degree ; 
at its centre, if at the rate of 20; and on its eastern 
side, if at the rate of 26i/2- In any event, there would 
always belong to Costa Eica all of that bay, with its 
coast and the Valiente Peninsula, under the mathe- 
matical demarcation of the dukedom, by being on the 
north of the square which encloses the parallel of 
8° 54' common to all the meridians determined by 
different lengths of leagues. 

Colombia, by presenting as a justifying title for her 
rights the Eoyal cedula of Carlos V of 1537, which 



188 

establishes the demarcation of the dukedom, proves her 
conformity with the boundaries of the latter, which 
are mathematical and refer concretely to geographical 
points and distances, and therefore offer the assurance 
of not going astray in the cognizance of the localities 
and the estimation of the facts that are connected 
therewith. 

Costa Rica has demonstrated that this Dukedom of 
Veragua was converted into the Province of Veragua, 
and even when for this reason it would seem that she 
ought to have claimed as the divisionary line that of 
the dukedom, she did not do so, but confined herself 
strictly to the legal and historical reality that, from 
the time of Artieda (1573) to the independence (1821), 
was the line she has asked for, that reality having 
been the one recognized by the Recopilacion de Indias 
and the principle of the colonial uti possidetis. 

By accepting the straight line of the dukedom, Costa 
Rica would lose, on the north, the territory in which 
Artieda founded the city bearing his name and almost 
the whole of the Valleys of Guaymi, of which he took 
possession, as governor of the province, with perfect 
right recognized by the King. In exchange, Costa Rica 
would gain, on the south, the territory embraced be- 
tween the Chiriqui Vie jo river and the line of the 
dukedom, enlarging herself by the Valleys of Chiriqui, 
to which she also had a right by virtue of the Royal 
cedula of 1573. 

Costa Rica could aspire to gain without losing, by 
claiming all the Valleys of Chiriqui under that Royal 
cedula, but she has not gone beyond the Chiriqui Viejo 
river, to follovv- the historic reality, for she con- 
siders that the Governors of Costa Rica abandoned the 



189 

valleys on the other side of that river to the intrusions 
of the Province of Veragua. 

5. Final Deductions. 

The following deductions are drawn from all that 
has been stated, concerning the general questions in 
which the case is synthetized : 

1. That both of the Parties litigant are agreed in 
accepting as legal bases for the determination of this 
case the Becopilacion de Indias and the principle of the 
colonial uti possidetis. 

2. That Colombia has swallowed up the question 
of boundaries in that of territoriality, denying even 
the legal existence of the Province of Costa Rica, which 
was definitively constituted in 1573 and with the same 
territory that it kept when it was recognized by the 
Becopilacion (1680) and when it was emancipated from 
Spain (1821). 

3. That Costa Rica has fully proved that the bounda- 
ries which separated her from the old Province of 
Veragua, when it was emancipated, were the same 
which she possessed when her domain was marked out 
by the Royal cedula of 1573 and which were confirmed 
by the Becopilacion. 

4. That Colombia, by claiming an enormous part of 
the territory of Costa Rica, has not undertaken to 
prove the boundaries of the Province of Veragua with 
that of Costa Rica, but by invoking as the title of her 
right the Royal cedula of March 2, 1537, which estab- 
lished the boundaries of the Dukedom of Veragua, she 
recognizes the boundaries of that dukedom, which is 
the Province of Veragua. 



190 

5. That the whole case between Colombia, or Pan- 
ama, and Costa Rica, reduces itself to the question 
whether there is to be fixed as the divisionary line that 
of the dukedom, as the said Royal cedula mathemati- 
cally determines it, or the line claimed by Costa 
Rica, which is the one that she has held in fact and law 
from her administrative constitution as a Spanish 
province until her political organization as a sovereign 
State. 



The undersigned counsel have the honor to submit 
the foregoing opinion in response to the questions 
proposed to them by the Government of the Republic 
of Costa Rica. 

Segismundo Mobet y Pbendeegast. 
Vicente Santamabia de Pabedes. 

Madrid, August 31, 1911. 



